MC 401 Exam 2

Access and Video Journalism Access to the judicial process for the video journalist involves two issues that normally do not concern reporters in the p... ...! 1.Is it possible to obtain c... of e... contained on a... or v..., and then a... these recordings? 2.Is it possible to te... an e... j... p...? Two Supreme Court rulings initially loomed as major s... b... for video journalists: a. Estes v. Texas (1965) - generally supported the b... on the t... or b... of j... p... b. Nixon v. Warner Communications (1978) - Supreme Court r... to recognize the right of journalists to make copies of a... e... for b... on the news Nixon v. Warner Communications (1978) -Tapes made by President Nixon at the WH as evidence in many of the Watergate trials. Broadcasters wanted to make c... of these tapes and play them for r... l... and T... v... -Supreme Court agreed there is a generally recognized r... of a... to inspect e... r... in a case but this right was not an a... r...! "The decision as to a... is one best left to soun discretion of the t... c..., a discretion exercised in light of facts and circumstances of the particular case" -Courts have come a long way in granting press a... to j... e... since then, but because the Nixon case focused specifically on the b... of t... e..., those judges who wish to resist broadcasters' efforts to use t... e... in their newscast have a strong precedent Access to Evidence Courts consider a variety of factors when considering a request to permit the b... of a... or v... evidence! 1.Was the material in... into evidence in o... c..., or have w... t... of the material been provided? -If yes to either, more likely (by no means certain) the court will ... to the request! Example: -One of earliest cases involving such a request, TV journalists sought to broadcast v... of an FBI sting that involved members of the House and Senate. The tapes had been played to the jury in o... c.., and several of the defendants were convicted. The trial judge r... the request, saying if the tapes were broadcast, it would be difficult to empanel a ... should an ... court order a retrial -The U.S. Court of Appeals for the D.C. r... the decision, stating the trial court must keep in mind the nation's strong tradition of a... to j... p... when it balanced the competing interests. And in balancing these interests "the court must give appropriate weight and consideration to the p... in favor of public a... to j... r..." The ... court admitted a retrial might be a problem, but the tapes contained only a... evidence that had been in... in o... c... If the material hasn't or won't be in... into evidence, chances of airing it are s...! -In the highly publicized trial of Hinckley, accused of trying to assassinate President Reagan, the TV networks sought to televise the v... deposition of actress Jodie Foster, but the tape was never a... into evidence. It was simply a statement from a w...; it just happened to be videotaped. The request was ... 2.Could broadcast of the material p... the f... t... r... of the ...? -MD Court of Special Appeals ... a lower-court ruling barring the broadcast of home videotape that was in... as evidence in a murder trial. Pictured in the videotape were the men charged with murder. The ... were being tried separately, and the trial judge barred the telecast of the videotape until the trial of the ... ... was concluded. -The f... t... r... of the ... ... took precedence over any ... law or ... ... right to gain access to and broadcast the evidence -2nd Circuit ruled it was ... for the broadcast media to air tapes presented as evidence by the government at a pretrial detention hearing! ... argued the broadcast of these tapes could endanger their f... t... r..., but the appellate court said these concerns could be addressed by a thorough v... d..., or even a c... of ... 3.What p... are on the audio or videotape? -Foster was an in... t... p... who was inadvertently pulled into the Hinckley case. A U.S. District Court in MN ... requests from broadcasters for permission to air videotapes of a h... recorded by her k... The court said airing the tape would cause severe hardship for the woman and would not serve a useful public purpose 4.Will airing the tape result in serving a p... p...? -Will it help members of the community understand the w... of the c..., or l... e... o... or important a... of a t...? -A court is more likely to p... the airing of electronic evidence if it accomplishes a u... p... p..., as opposed to simply t... listeners/viewers! Recording and Televising Judicial Proceedings -1976 - cameras and other recording equipment were b... from c... in all but ... states! (Which...?) -Today, such equipment is p... in at least some c... in ... ... states! ... and ... became the final two to join in this reversal of older rules! The rules ... from ... to ... and are often c...! Brief overview of some variations that exist: a. In nearly ... states, cameras and/or recording equipment are p... in both t... and ... c...! -In a handful of states recording is only p... in ... c...; but these state rules tend to be f... and c... from time to time. The best source for information on what is p... in an individual state is the RTDNA b. In some states, the right to use this equipment in a courtroom is p...! In others, broadcasters/photographers must first get the p... of the ... or ... or even the p...! -In either case, a ... can bar electronic equipment if there is s... r...! c. In some instances, p... involved in the legal proceeding must a... before they can be p...! -But their r... to be photographed cannot totally b... cameras from r... the rest of the participants or the p... in general! d. J... cannot be photographed in some states! The reversal of the rules regarding the use of cameras and other recording devices in the courtroom came after a more than 40 year struggle by the press! -Prohibitions were instituted in the ..., after the almost unbridled photography during the trial of Bruno Hauptmann, man accused of kidnapping and killing baby of the Lindbergh's, generated a c...-like atmosphere during the proceeding -Press conducted itself in an o... fashion, Hauptmann was charged in 1934 -The American Bar Association instituted C... ..., which called for b... the use of cameras and other electronic recording equipment during t..., and the vast m... of American courts a... this rule! -As photographic tech improved in the 40s and 50s, and as b... j... became a more important part of Americans' n... d..., pressure to change the rules increased -But in 1965, Supreme Court b.. these efforts to modify limits when it ruled the p... of cameras and recorders at a trial in TX [one of ... states that did not adopt the C... ... rules] p... the rights of the ... to a f... t...! -Efforts by press to o... c... to recording equipment continued across nation, and one by one states abandoned the rules of C... ... Chandler v. Florida (1981) -Supreme Court gave its a... to these changes by states, the mere p... of cameras in the c... in and of itself would not necessarily have an a... e... on the t... process! -To block the use of cameras and recorders at a trial, the court will have to find the equipment will a... a... the t... process! To o... a conviction at a trial that has been t..., the ... would need to show the electronic equipment actually made a s... d... in some ma... aspect of the proceeding!

Access and Video Journalism Access to the judicial process for the video journalist involves two issues that normally don't concern reporters in the print media!!! 1. Is it possible to obtain copies of evidence contained on audio or video, and then air these recordings? 2. Is it possible to telecast an entire judicial proceeding? Two Supreme Court rulings initially loomed as major stumbling blocks for video journalists: a 1965 ruling (Estes v. Texas) that generally supported the ban on the telecast or broadcast of judicial proceedings and a 1978 ruling (Nixon v. Warner Communications) in which the high court refused to recognize the right of the journalists to make copies of audiotaped evidence for broadcast on the news Nixon v. Warner Communications Involved tapes made by President Nixon at the WH that were used as evidence in many of the Watergate trials of the 1970s. Broadcasters wanted to make copies of these tapes and play them for radio listeners and TV viewers. The Supreme Court agreed there is a generally recognized right of access to inspect evidentiary records in a case but said this right was not an Absolute right. "The decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case," the court ruled. Courts have come a long way in granting press access to judicial evidence since 1978. But because the Nixon case focused specifically on the broadcast of taped evidence, those judges who wish to resist the broadcasters' efforts to use taped evidence in their newscast have a fairly strong precedent on their side Access to Evidence Courts consider a variety of factors when considering a request to permit the broadcast of audio or videotape evidence: 1. Was the material introduced into evidence in open court, or have written transcripts of the material been provided? If the answer is yes to either question, it is more likely, but by no means certain, the court will agree to the request! Example: One of the earliest cases involving such a request, TV journalists sought to broadcast videotapes of an FBI sting operation that involved members of the House and Senate. The tapes had been played to the jury in open court, and several of the defendants were convicted. The trial judge refused the request, saying if the tapes were broadcast, it would be difficult later to empanel a jury should an appellate court order a retrial. The U.S. Court of Appeals for the D.C. reversed the decision, stating the trial court must keep in mind the nation's strong tradition of access to judicial proceedings when it balanced the competing interests. And in balancing these interests, "the court must give appropriate weight and consideration to the presumption - however gauged - in favor of public access to judicial records" The appellate court admitted a retrial might be a problem, but the tapes contained only admissible evidence that had been introduced in open court. If the material has not or will not be introduced into evidence, chances of airing it are slim! Example: In the highly publicized trial of Hinckley, who was accused of trying to assassinate President Reagan, the TV networks sought to televise the videotaped deposition of actress Jodie Foster (Hinckley was infatuated with Foster and this fantasy played a part in his motivation to shoot the president), but the tape was never admitted into evidence. It was simply a statement from a witness; it just happened to be videotaped. The request was refused. 2. Could broadcast of the material prejudice the fair trial rights of the defendant? Example: MD Court of Special Appeals affirmed a lower-court ruling barring the broadcast of home videotape that was introduced as evidence in a murder trial. Pictured in the videotape were two men who were charged with murder of the victim. The defendants were being tried separately, and the trial judge barred the telecast of the videotape until the trial of the second defendant was concluded. The fair trial rights of the second defendant took precedence over any common law or 1A right to gain access to and then broadcast the evidence, the court said. Eight years later, however, the 2nd Circuit ruled it was permissible for the broadcast media to air tapes presented as evidence by the government at a pretrial detention hearing. Defendants argued the broadcast of these tapes could endanger their fair trial rights, but the appellate court said these concerns could be addressed by a thorough voir dire, or even a change of venue 3. What people are on the audio or videotape? Tapes of defendants or police officers are more likely to be released than tapes of victims or witnesses! Example: Foster was an innocent third party who was inadvertently pulled into the Hinckley case. A U.S. District Court in MN rejected requests from broadcasters for permission to air videotapes of a hostage recorded by her kidnapper. The court said airing the tape would cause severe hardship for the woman and would not serve a useful public purpose 4. Will airing the tape result in serving a public purpose? Will it help members of the community understand the workings of the court, or law enforcement operations or important aspects of a trial? A court is more likely to permit the airing of so-called electronic evidence if it accomplishes a useful public purpose, as opposed to simply titillating (exciting) listeners and viewers Recording and Televising Judicial Proceedings 1976, only about 50 years ago, cameras and other recording equipment were barred from courtrooms in all but two states, CO and TX. Today, such equipment is permitted in at least some courtrooms in all 50 states. MS and SD became the final two states to join in this massive reversal of the older rules! The rules vary from state to state and are often complex! Brief overview of some of the kinds of variations that exist: è In nearly all states, cameras and/or recording equipment are permitted in both trial and appellate courts. In a handful of states recording is permitted only in appellate courts. But these state rules tend to be fluid and change from time to time. The best source for information regarding what is permitted in an individual state is the Radio Television Digital News Association è In some states, the right to use this equipment in a courtroom is presumed! In other states, broadcasters and photographers must first get the permission of the judge or justices or even the parties. But in either case, a judge can bar electronic equipment if there is sufficient reason! è In some instances, parties involved in the legal proceeding must agree before they can be photographed. But their refusal to be photographed cannot totally block cameras from recording the rest of the participants or the proceedings in general. è Jurors cannot be photographed in some states! The reversal of the rules regarding the use of cameras and other recording devices in the courtroom came after a more than 40-year struggle by the press! Prohibitions against the use of cameras were instituted in the 1930s after the almost unbridled photography during the trial of Bruno Hauptmann, the man accused of kidnapping and killing the baby of Charles and Anne Lindbergh, generated a circus-like atmosphere during the proceeding. At that time, the press had conducted itself in an outrageous fashion in covering the trial of Hauptman, who in 1934 was charged with kidnapping the baby of the Lindbergh's. The American Bar Association instituted Canon 35, which called for banning the use of cameras and other electronic recording equipment during trials, and the vast majority of American courts adopted this rule! As photographic tech improved in the 1940s and 50s, and as broadcast journalism became a more important part of Americans' news diets, pressure to change the rules increased. But in 1965, the U.S. Supreme Court blunted the efforts to modify these limits when it ruled the presence of cameras and recorders at a trial in TX (one of the two states that didn't adopt the Canon 35 rules) prejudiced the rights of the defendant to a fair trial. Despite this setback, efforts by the press to open courtrooms to recording equipment continued across the nation, and one by one, states abandoned the rules of Canon 35. 1981, the Supreme Court gave its approval to these changes when it ruled in CHANDLER V. FLORIDA the mere presence of cameras in the courtroom in and of itself wouldn't necessarily have an adverse effect on the trial process In order to block the use of cameras and recorders at a trial, the court will have to find that the equipment will adversely affect the trial process. To overturn a conviction at a trial that has been televised, the defendant would need to show the electronic equipment actually made a substantial difference in some material aspect of the proceeding!

Federal Guidelines As a kind of corollary to a shield law, the U.S. ... of ... has adopted guidelines defining w... and h... f... p... can obtain s... against reporters! -Various guidelines around for decades -Most recent guidelines released in 07/2021 by Attorney General Garland. Intended to "better protect" the "important national interest in protecting j... from c...d d... of ... revealing their s..." -New guidelines emerged after revelations the ... of ... under the Trump administration secretly subpoenaed phone and email records of 8 reporters from WP, NYT, CNN. ... of ... sought records to discover identity of sources who leaked classified information to the press in 2017. ... of ... failed to n... the affected news organizations in a..., even though the guidelines then in place said the ... of ..., with only l... e..., should give journalists "r... and t... n... of subpoenas" -Attorney General met with news executives and executive director of Reporters Committee for Freedom of the Press to discuss ways to strengthen p... for journalists when their reporting is relevant to f... i... (then released revised guidelines in 07/2021) The new guidelines appear to es... the b...-t... approach used in previous versions! -"The DOJ will no longer use co... l... p... - such as s... or w... - for the purpose of obtaining information f... or r... o... members of the news media acting within the scope of n...-... activities" - That prohibition, the guidelines say, prevents s... issued directly to r..., to their p... or e... and also to t...-p... s... p...! It prevents the DOJ from s... p... c... or e... s... as a way to gather journalists' records The new guidelines allow for only n... e...! These include when a journalist is being investigated for c... a...; when a journalist used c... m... (breaking and entering) to obtain g... i...; cases where the information could "prevent an im... r... of d... or s... b... h..." Even in these n... e..., DOJ must first try to obtain the information from a... s...! IMPORTANT TO REMEMBER: THESE GUIDELINES ARE P..., NOT C... F... L... ADOPTED BY CONGRESS - THIS DOES LEAVE THE DOJ WITH SOME D... IN HOW TO IN... THEM Newsroom Searches Is a newsroom or a journalist's home protected by the ... ... from a search by the police or federal agents? Supreme Court r... to e... the ... ... in such a manner in 1978; since then C... and many s... l... have provided q... l... p... for premises where news and scholarship are produced! The lawsuit that resulted in the Supreme Court ruling stemmed from political turmoil of the early 1970s... Zurcher v. Stanford Daily (1978) -Decision...? -Police were asked in 1971 to remove student demonstrators who were occupying the administrative offices of Stanford University Hospital. When police entered the west end of the building, demonstrators poured out east and during ensuing melee outside the building, several police officers were hurt. The battle between the police and students was photographed by a student, and the following day pictures of the incident were published in the Stanford Daily student newspaper -To discover which students had attacked the injured police officers, law enforcement officials secured a warrant for a search of the Daily's newsroom, hoping to find more pictures taken by the student photographer. There was no a... that any member of the staff was involved in the attack or other unlawful acts. No evidence was discovered during the thorough search -This type of search is known as an i... t...-... search, or simply a t...-... search! Police search the premises for evidence relating to a crime even though there is n... r... to suspect that the owner or the occupant of the premises is i... in the crime being investigated. Not uncommon. In the lawsuit, the student newspaper argued this kind of search threatened the f... of the p... and should not be permitted unless police officials first obtain a s... - which is more difficult for police to get than a simple s... w... The s... process would also provide the press with n... p... to the search and allow editors and reporters to c... the issuance of the s... -The newspaper argued the unannounced t...-... search of a newsroom threatened the ability of the press to g..., a... and d... n... The searches could be p... d... for a craft in which meeting deadlines is essential. C... s... - fearful some evidence that would reveal their identity might surface in such a search - would refuse to cooperate with reporters. Reporters would be deterred from keeping notes and files if such material could be seized in a search. All of this, and more, could have a c... e... on the p..., lawyers for the newspaper argued! -The Supreme Court...? -Justice White ruled the problem was a ... ... question (Was the search permissible under the ... ...?), not a ... ... question, and that under existing law a w... may be issued to search any property if there is reason to believe e... of a c... will be found. "The ... ... has itself struck the balance between p... and p... n... and there is no occasion or justification for a court to revise the Amendment and strike a new balance" White wrote. He conceded "where the materials sought to be seized may be protected by the ... ..., the requirements of the ... ...must be applied with 'scrupulous exactitude" He added, Justice White rejected the notion that such u... searches are a threat to the ... of the ..., arguing the f... were certainty aware of the struggle between the p... and the C... in the 17th/18th centuries, when the g... s... w... was a serious problem for the press. Yet the f... didn't forbid the use of s... w... where the press was involved. They obviously believed the protections of the ... ... would sufficiently protect the p...! Newsroom searches, a r... in the decades before the Zurcher case, suddenly became a c... o...! Journalists sought l... relief from this onslaught and Congress responded by adopting the... Privacy Protection Act of 1980 The law limits the way law officers and government agents can s... for or s... materials that are in the hands of persons working for the mass media or persons who expect to p...d... the material in some other manner (e.g., public speech). -The statute designates two categories of material that are protected: 1. W... ... - encompasses the material whose very creation arises out of a purpose to convey information to the public (reporters' notes, outtakes, etc.) 2. D... ... - materials upon which information is formally recorded (government reports, manuscripts, etc.) -Congress based the statute on the c... c... in the U.S. Constitution to extend the reach of the law to include state and local a... as well as federal l... e... p... -To obtain either w... ... or d... ..., law enforcement agencies must obtain a s...; a s... w... will not do! There are exceptions to the rule. A law enforcement agency may conduct a w... search of a newsroom to find w... p... in either two situations: 1. When there is p... ... to believe that the persons possessing such materials has c... or is c... a c... o... to which the m... r...! ("s... e...") 2. When there is reason to believe im... s... of such materials is necessary to prevent the d... or s... h... to a person A s... w... may be used instead of s... to obtain d... ... if either of the two conditions just listed occur OR in either of these two situations: 1. Reason to believe the giving of n... pursuant to gaining a s... would result in the d..., a..., or c... of such materials 2. That such materials have not been provided in response to a c... o... directing compliance with a s..., all other l... r... have been exhausted, and there is reason to believe further delay in gaining the material would threaten the in... of j... In most instances, law enforcement personnel will be forced to seek a s... to gain access to information kept in a newsroom or a reporters' home Sennett v. United States (4th Circuit) illustrates the use of "s... e..." for when a s... w... can be used instead of a s...: -Sennett is a photojournalist who took pictures of a disturbance at the Four Seasons Hotel in D.C., years earlier. A group of about masked individuals demonstrating during the International Monetary Fund's 04/2008 meeting "entered the lobby and threw firecrackers and pyrotechnic devices, paint-filled balloons, at various targets" The vandals fled the scene before they could be arrested. A hotel security camera showed images of Sennett arriving on the scene at the same time as the protestors and also showed her fleeing the hotel "with/in the same general direction as the protestors" -A law enforcement officer later identified Sennett on the hotel's surveillance video and determined that Sennett had attended multiple protests throughout the D.C. area. Sennett appeared to be as much of a s... as a j..., and the law enforcement officials obtained a w... to search her residence believing it likely "contained e... of s... c... a... that occurred during the protest at the Four Seasons" -During the search of Sennett's residence, federal agents seized an external hard drive, two computers and several cameras and memory cards. Sennett sued, claiming the warrant-based search violated the ... ... Act and the agents should have obtained a s... The agents countered that the s... e... applied because there was p... c... to believe Sennett c... a c... o... to which her photographs related. -4th Circuit ruled against Sennett, despite observing she offered a "plausible, innocent explanation for her appearance on the videotape - that she was present to document what she believed would be a lawful demonstration" The appellate court reasoned such a plausible explanation "does not negate p... c..." on the part of law enforcement officers in obtaining a s... w... The appellate court thus affirmed the ruling of a district court judge who concluded "a r... p... would be warranted in believing that Sennett's role in the vandalism was to serve as the group's photographer or videographer, so that a memorialization of the event could be used to advance the group's purposes and to claim responsibility" How to Respond to a Subpoena What should a reporter do if they are subpoenaed? 1. Try to a... the problem a...! -Don't give a p... of c... to a source without first carefully considering whether such a p... is actually needed to g... the story! -Discuss the matter with an e... or n... d... before agreeing to keep the name of a source confidential -Don't talk even in... with people o... the newspaper about stories in which c... in... or s... are involved. Such discussions may be ruled to constitute a w... of the p... you seek to assert at a later date! 2. But if a subpoena should arrive, the first thing to remember is the police aren't coming to your door to a... you! -The subpoena is simply an o... that you have been called to appear at some type of p... or supply certain d...; So don't panic! -Tell your e... or n... ... immediately -Ask to talk with your news organization's l... c... -Don't attempt to a... being served with the subpoena. While a reporter is under no obligation to make the job easier for the person serving the subpoena, r... to this service may result in the subpoena being abandoned and a s... w... issued in its place -Don't ever accept a subpoena for s... e... -If the subpoena requests only p... material, or video that has p... been b..., the newspaper or broadcasting station may simply provide this material w... d...! Journalists should be familiar with their news organization's policy on r... n..., c... f..., f... d... and so on! -Once the subpoena has been served, the material sought is considered o... e..., and if it is d... to a... having to produce it, the reporter very likely will be held in c... of the c...! -Once you have been served, begin g... the material together in case you have to s... it at some later time. -If you believe the material or names of sources should be w..., and your news organization d..., it is in your interest to hire your o... a... to represent you. The c... a... is working for the company, not you! What happens if the police improperly show up at the newsroom door with a w... instead of a required s... and begin to search your newsroom? The Reporters Committee for Freedom of the Press recommends that "s... p... or c... o... should r... the scene! Though staff members may not im... the law enforcement officials, they are not required to a... the searchers" -Today a journalist could p... or r... such an illegal search with a s..., thus preserving evidence for a court proceeding to declare the search invalid under the ... ... Act of 1980 -Also immediately call your news organization's a... A Fourth Amendment Case with Freedom Implications -For contemporary journalists, a smartphone is like their mobile newsroom, which goes wherever they go. And a phone's l... r... can be used to reconstruct a person's m... and w... over t...! If the government can access those r... without much judicial oversight, a journalist's ability to maintain the c... of s... is threatened Carpenter v. United States (2018) -Decision...? -Didn't involve a journalist or the ... ..., but it had implications for journalists' ability to gather news without their m..., and those of their s..., being surveilled -Carpenter was convicted and sentenced to prison for his role in armed robberies of Radio Shacks and T-Mobile stores in MI/OH. To build their case against C, prosecutors obtained his cell phone r... over a period of 127 days. The phone r... over that period placed C at 12,898 l... As Chief Justice Roberts pointed out in his opinion in the case, "Mapping a cellphone's l... over the course of 127 days provides an all-encompassing record of the holder's w..." -To get C's cell phone r..., prosecutors relied on what's called the S... C... Act, which allows the government to compel the disclosure of certain p... r... when it offers "specific and articulable facts showing that there are r... g... to believe" the records sought "are r... and m... to an o... c... in..." The S... C... Act didn't require prosecutors get a w... to access the records! -The Reporters Committee for Freedom of the Press and 19 other media organizations filed a f...-of-the-court (a... c...) b... when C's case reached the Supreme Court. The brief urged the Court to require the government to obtain a w... to acquire cell phone l... d... -Supreme Court agreed and established that rule! "Virtually any activity on the phone generates" l... in... "including incoming calls, texts or emails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates" -(Roberts) -For the government to access such intrusive information amounts to a search within the meaning of the ... ... - and that search requires a w... supported by p... ... Remember with shield laws: -41 states + D.C. -Q... p... for reporters to r... to t... in l... p... -Problems: Lack of c... among state laws, d... p... that permit courts to construe them very narrowly, usually protect only what someone t... a reporter not what a reporter p... s.../h... -No ... shield law Privacy Protection Act of 1980: -Congress passed in response to ruling that the ... ... doesn't ban searches of newsrooms or reporters' homes (Zurcher, Supreme Court)

Federal Guidelines As a kind of corollary (offshoot) to a shield law, the U.S. Department of Justice (DOJ) has adopted guidelines defining when and how federal prosecutors can obtain subpoenas against reporters. Various DOJ guidelines have been around for decades. The most recent ones were released in 07/2021 by Attorney General Garland. They were intended to "better protect" what Garland called "the important national interest in protecting journalists from compelled disclosure of information revealing their sources" The new guidelines emerged following revelations in Spring 2021 that the DOJ, under Trump administration, secretly subpoenaed phone and email records of 8 reporters from the Washington Post, NYT, and CNN. The DOJ sought records to discover the identity of sources who had leaked classified information to the press back in 2017. The DOJ failed to notify the affected news organizations in advance, even though the guidelines then in place said the DOJ, with only limited exceptions, should give journalists' 'reasonable and timely notice of subpoenas' The journalism community was outraged. President Biden called it "simply wrong" for the DOJ to have secretly seized reporters' records. "I will not let this happen" In 06/2021, Attorney General Garland met with news executives as well as Brown, executive director of the Reporters Committee for Freedom of the Press to discuss ways to strengthen protections for journalists when their reporting is relevant to federal investigations. Garland then released the revised guidelines in 07/2021. The new guidelines appear to eschew (abstain from, avoid) the balancing-test approach used in previous versions. They now make clear the "DOJ will no longer use compulsory legal process" - such as subpoenas or warrants - "for the purpose of obtaining information from or records of members of the news media acting within the scope of newsgathering activities." That prohibition, the guidelines say, prevents subpoenas issued directly to reporters, to their publishers or employers and also to third-party service providers. That last part is important because it prevents the DOJ from subpoenaing phone companies or email services as a way to gather journalists' records. The new guidelines allow for only narrow exceptions. These include when a journalist is being investigated for criminal activity; when a journalist used criminal methods such as breaking and entering, to obtain government information; and in cases where the information could "prevent an imminent risk of death or serious bodily harm." Even in these narrow exceptions, the DOJ must first try to obtain the info from alternative sources! "The attorney general has taken a necessary and momentous step to protect press freedom at a critical time," Brown said. "This historic new policy will ensure journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources." These guidelines are policy, not codified federal law adopted by Congress!!! This leaves the DOJ with some discretion in how to interpret them Newsroom Searches Is a newsroom or a journalist's home protected by the 1A from a search by the police or federal agents? The Supreme Court refused to extend the 1A in such a manner in 1978. Since then, however, Congress and many state legislatures have provided qualified legislative protection for premises where news and scholarship are produced. The lawsuit that resulted in the Supreme Court ruling stemmed from the political turmoil of the early 1970s, a period that generated many of the previously discussed cases regarding reporters' sources. 04/1971, police were asked to remove student demonstrators who were occupying the administrative offices of Stanford University Hospital. When police entered the west end of the building, demonstrators poured out of the east and during the ensuing melee outside the building, several police officers were hurt, two seriously. The battle between the police and students was photographed by a student, and the following day pictures of the incident were published in the Stanford Daily student newspaper. In an effort to discover which students had attacked the injured police officers, law enforcement officials from Santa Clara County secured a warrant for a search of the Daily's newsroom, hoping to find more pictures taken by the student photographer. There was no allegation that any member of the Daily staff was involved in the attack or other unlawful acts. No evidence was discovered during the thorough search. This type of search is known as an innocent third-party search, or simply a third-party search! Police search the premises or a room for evidence relating to a crime even though there is no reason to suspect that the owner of the premises or the occupant of the room is involved in the crime that is being investigated. Such searches are not uncommon, but in the lawsuit that followed, the student newspaper argued this kind of search threatened the freedom of the press and should not be permitted unless police officials first obtain a subpoena - which is more difficult for police to get than a simple search warrant. The subpoena process would also provide the press with notice prior to the search and allow editors and reporters to challenge the issuance of the subpoena. The newspaper argued the unannounced third-party search of a newsroom seriously threatened the ability of the press to gather, analyze and disseminate news. The searches could be physically disruptive for a craft in which meeting deadlines is essential. Confidential sources - fearful some evidence that would reveal their identity might surface in such a search - would refuse to cooperate with reporters. Reporters would be deterred from keeping notes and files if such material could be seized in a search. All of this, and more, could have a chilling effect on the press, lawyers for the newspaper argued. The Supreme Court in a 5-3 ruling, disagreed with the newspaper. Justice Byron White ruled the problem was essentially a Fourth Amendment question (Was the search permissible under the 4A?), not a 1A question, and that under existing law a warrant may be issued to search any property if there is reason to believe evidence of a crime will be found. "The 4A has itself struck the balance between privacy and public need and there is no occasion or justification for a court to revise the Amendment and strike a new balance," White wrote. He conceded "where the materials sought (attempted/desired) to be seized may be protected by the 1A, the requirements of the 4A must be applied with 'scrupulous (very careful) exactitude (precision)" He added, "Where presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion of the officer in the field" But Justice White rejected the notion that such unannounced searches are a threat to the freedom of the press, arguing the framers of the Constitution were certainty aware of the struggle between the press and the Crown in the 17th and 18th centuries, when the general search warrant was a serious problem for the press. Yet the framers didn't forbid the use of search warrants where the press was involved, White asserted. They obviously believed the protections of the 4A would sufficiently protect the press! Newsroom searches by the police, a rarity in the decades before the Zurcher (Zurcher v. Stanford Daily) case, suddenly became a common occurrence. Journalists sought legislative relief from this onslaught and Congress responded by adopting the Privacy Protection Act of 1980. The law limits the way law officers and government agents can search for or seize materials that are in the hands of persons working for the mass media or persons who expect to publicly disseminate the material in some other manner (e.g., public speech). The statute designates two categories of material that are protected: WORK PRODUCTS and DOCUMENTARY MATERIALS. The law says a work product "encompasses the material whose very creation arises out of a purpose to convey information to the public." In layperson's language, work products are reporters' notes, outtakes, etc. Documentary materials are described "materials upon which information is formally recorded" such as government reports, manuscripts, and the like. Congress based the statute on the commerce clause in the U.S. Constitution in order to extend the reach of the law to include state and local agencies as well as federal law enforcement personnel. To obtain either work products or documentary materials, law enforcement agencies must obtain a subpoena; a search warrant will not do! There are exceptions to the rule. A law enforcement agency may conduct a warranted search of a newsroom to find work products in either of the following two situations: 1. When there is a probable cause to believe that the person possessing such materials has committed or is committing a criminal offense to which the materials relate. Known as "suspect exception" 2. Where there is reason to believe immediate seizure of such materials is necessary to prevent the death of or serious harm to a person A search warrant may be used instead of subpoena to obtain documentary materials if either of the two conditions just met are listed OR in either of these two situation: 1. Reason to believe the giving of notice pursuant to gaining a subpoena would result in the destruction, alteration or concealment of such materials 2. That such materials have not been provided in response to a court order directing compliance with a subpoena, all other legal remedies have been exhausted, and there is reason to believe further delay in gaining the material would threaten the interests of justice In most instances, law enforcement personnel will be forced to seek a subpoena to gain access to information kept in a newsroom or a reporter's home. 2012 decision by 4th Circuit in Sennett v. United States, however, illustrates the use of "suspect exception" for when a search warrant (rather than a subpoena) is permissible! Sennett is a photojournalist who took pictures of a major disturbance at the Four Seasons Hotel in D.C., several years earlier. In particular, a group of about 16 masked individuals demonstrating during the International Monetary Fund's 04/2008 "entered the lobby and threw firecrackers and smoke-generating pyrotechnic devices, along with paint-filled balloons, at various targets" The vandals, who also shattered a large glass window at the hotel, fled the scene before they could be arrested. A hotel security camera, however, showed images of Sennett arriving on the scene at the same time as the protestors and also showed her fleeing the hotel "with or in the same general direction as the protestors" A law enforcement officer later identified Sennett on the hotel's surveillance video and determined through a reliable source, as well as through video footage found on Google and Yahoo, that Sennett had attended multiple protests throughout the D.C. area. Sennett appeared to be as much of a suspect as a journalist, and the law enforcement officials obtained a warrant to search her residence believing it likely "contained evidence of suspected criminal activity that occurred during the IMF protest at the Four Seasons" During the search of Sennett's residence, federal agents seized an external hard drive allegedly containing more than 7,000 photographs, two computers and several cameras and memory cards. Sennett sued, claiming the warrant-based search violated the Privacy Protection Act and the agents should have obtained a subpoena. The agents, however, countered that the suspect exception applied because there was probable cause to believe Sennett committed a criminal offense to which her photographs related. 4th Circuit ruled against Sennett, despite observing she offered a "plausible, innocent explanation for her appearance on the videotape - that she was present to document what she believed would be a lawful demonstration" The appellate court reasoned such a plausible explanation "does not negate probable cause" on the part of law enforcement officers in obtaining a search warrant. The appellate court thus affirmed the ruling of a district court judge who concluded "a reasonable person would be warranted in believing that Sennett's role in the vandalism was to serve as the group's photographer or videographer, so that a memorialization of the event could be used to advance the group's purposes and to claim responsibility" How to Respond to a Subpoena What should a reporter do if they are subpoenaed? 1. Try to avoid the problem altogether. Don't give a promise of confidentiality to a source without first carefully considering whether such a promise is actually needed to get the story. Discuss the matter with an editor or news director before agreeing to keep the name of a source confidential. Don't talk even informally with people outside the newspaper about stories in which confidential information or sources are involved. Such discussions may be ruled to constitute a waiver of the privilege you seek to assert at a later date! 2. But if a subpoena should arrive, the first thing to remember is the police are not coming to your door to arrest you. The subpoena is simply an order that you have been called to appear at some type of proceeding or supply certain documents. So don't panic! -Tell your editor or news director immediately. -Ask to talk with your news organization's legal counsel. -Don't attempt to avoid being served with the subpoena. While a reporter is under no obligation to make the job easier for the person serving the subpoena, resistance to this service may result in the subpoena being abandoned and a search warrant issued in its place. -Don't ever accept a subpoena for someone else. -If the subpoena requests only published material, or video that has previously been broadcast, the newspaper or broadcasting station may simply provide this material without dispute! Journalists should be familiar with their news organization's policy on retaining notes, computer files, first drafts and so on! -Once the subpoena has been served, the material sought is considered official evidence, and if it is destroyed to avoid having to produce it, the reporter very likely will be held in contempt of the court. -So once you have been served, begin gathering the material together in case you have to surrender it at some later time. -If you believe the material or names of sources should be withheld, and your news organization disagrees, it is in your interest to hire your own attorney to represent you. The company attorney is working for the company, not you. And what happens if the police improperly show up at the newsroom door with a warrant instead of a required subpoena and they begin to search your newsroom? The Reporters Committee for Freedom of the Press recommends in its "First Amendment Handbook" that "staff photographers or camera operators should record the scene. Although staff members may not impede the law enforcement officials, they are not required to assist the searchers." Today a journalist could photograph or record such an illegal search with a smartphone, thus preserving evidence for a court proceeding to declare the search invalid under the Privacy Protection Act of 1980. You should also immediately call your news organization's attorney. Box: A Fourth Amendment case with press freedom implications For contemporary journalists, a smartphone is like their mobile newsroom, which goes wherever they go. And a phone's location records can be used to reconstruct a person's movements and whereabouts over time. If the government can access those records without much judicial oversight, a journalist's ability to maintain the confidentiality of sources is threatened. This is why journalists closely monitored the U.S. Supreme Court case Carpenter v. United States. The case didn't involve a journalist or the 1A, but it had implications for journalists' ability to gather news without their movements, and those of their sources, being surveilled. In the case, Carpenter was convicted and sentenced to prison for his role in armed robberies of Radio Shacks and T-Mobile stores in MI and OH. To help build their case against Carpenter, prosecutors obtained his cell phone records over a period of 127 days. The phone records over that period placed Carpenter at 12,898 locations, an average of 101 data points per day. As Chief Justice Roberts pointed out in his opinion in the case, "Mapping a cellphone's location over the course of 127 days provides an all-encompassing record of the holder's whereabouts" To get Carpenter's cell phone records, prosecutors relied on what's called the Stored Communications Act, which allows the government to compel the disclosure of certain phone records when it offers "specific and articulable facts showing that there are reasonable grounds to believe" the records sought "are relevant and material to an ongoing criminal investigation." Importantly, the Stored Communications Act didn't require prosecutors get a warrant to access the records. The Reporters Committee for Freedom of the Press and 19 other media organizations filed a friends-of-the-court (amici curiae) brief when Carpenter's case reached the Supreme Court. The brief urged the Court to require the government to obtain a warrant to acquire cell phone location data. In 2018, 5-4 Supreme Court agreed and established that rule! Writing for the majority, Chief Justice Roberts noted "virtually any activity on the phone generates" location information "including incoming calls, texts or emails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates" For the government to access such intrusive information, Roberts said, amounts to a search within the meaning of the Fourth Amendment - and that search requires a warrant supported by probable cause. "Before compelling a wireless carrier to turn over a subscriber's [cell phone location information], the Government's obligation is a familiar one - get a warrant" the Court concluded. The American Civil Liberties Union lawyer who argued the case before the Court hailed the decision as "a groundbreaking victory for Americans' privacy rights in the digital age" Summary State legislatures and the federal government have adopted statutes and rules that offer some protection to journalists who hold confidential information sought by government agents and other individuals. 41 states and D.C. have adopted shield laws, which provide a qualified privilege for reporters to refuse to testify in legal proceedings. Though these statutes can be helpful, they are not without problems. There is a lack of consistency among the state shield laws. These laws have definitional problems that permit courts to construe them very narrowly. The laws usually protect only what someone tells a reporter, not what a reporter personally sees or hears. As of 11/2021, there was NO federal shield law to protect journalists from revealing sources and confidential information in federal court proceedings. The U.S. Department of Justice has adopted guidelines that govern when and how federal agents may subpoena journalists and their records. The most recent version of the guidelines released in 07/2021 indicate the DOJ won't use subpoenas or warrants "for the purpose of obtaining information from or records of members of the news media acting within the scope of newsgathering activities" The guidelines allow for only narrow exceptions. Congress passed the Privacy Protection Act of 1980 in response to a ruling by the U.S. Supreme Court that the 1A doesn't ban searches of newsrooms or reporters' homes. This act requires federal, state and local police agencies who seek a journalist's work products or other documentary materials to get a SUBPOENA for these materials rather than seize them under the authority of a search warrant. The statute does provide exceptions to the rule! Example: Premises may be searched and materials seized under a search warrant if police believe the reporter has committed a crime, if there is reason to believe someone will be harmed if the materials are not seized or if police fear the materials might be destroyed if a subpoena is sought.

Appropriation It is illegal to use an individual's ... or ... for ... or ... purposes without consent -The ... of the four torts Two of the earliest privacy cases on record, how the appropriation tort is supposed to protect an individual from c... e...: Abigail Roberson, NY, found pictures of herself all over town on posters advertising Franklin Mills Flour. 25k copies of ad placed in stores, warehouses, saloons, public places. She felt embarrassed and humiliated, suffered from this c... e... and sued for IOP -New York Supreme Court ruled...? "The so-called right to privacy hasn't yet found a place in our jurisprudence" -After this decision, controversy arose in NY led by newspaper and magazines, expressing outrage. Settled on the state legislature who in 1903 adopted the ...'s ... ... ...! -The ... was very ...; prohibited a very specific kind of conduct. Use of an individual's ... or ... without their consent for ... or ... purposes made a minor crime. The injured party could also receive an injunction to stop use of ... or ... and receive ... damages! Georgia, 1905, became the first state to recognize the right of privacy through ... law! -Pavesich, artist, discovered life insurance company used his photo in newspaper ads. Photo was used in a before and after ad to illustrate a successful man who had bought sufficient life insurance. Testimonial statement also ascribed to the artist -Sued for $25k and ... his case before Georgia Supreme Court Right of Publicity The appropriation tort encompasses two slightly different causes of action. Differences sound legalistic but are important! 1. Right to Privacy -Protect an individual from ... damage that can occur when a ... or ... is used for a ... or ... purpose (the embarrassment Roberson felt when she woke to find her picture all over ad posters) -Applies to any person (the average person and well-known people alike) -Something of ... value is gone when the owner ...! 2. Right of Publicity -Enumerate individuals for the ... harm suffered when their ... or ... is used for an ad for ... purposes and they are not ... for it! -"An individual's ... or ... has ... value, and using it without permission is akin to ...!" -Protects a ... right (the ... value of someone's ... or ...), so normally only someone whose ... or ... has a ... value can successfully allege a violation of their right to publicity (Average person? Professional athletes or celebrities?) -Only ...-... people have a legally recognized ... value in their ... or ..., and except in unusual cases, they are the only ones who can sue for damage to their right of publicity -Something that has ... value can usually be passed on to an ... when the owner ...! Possible in some states for a celebrity, sports star, well-known person who has ... to pass on the property right of their ... to their ... (The right of publicity is d...) While the legal right to privacy is about 130 years old, the notion of a right to publicity is far ...! Has only been the last three decades where right-to-publicity litigation has accelerated. Two reasons: 1. The tremendous growth of the 'c... of c...' in the U.S. and world (stories and pictures about entertainers, musicians, sports personalities overflow traditional mass media and online; entire publications, TV shows, Web sites devoted to them) 2. American businesses and organizations have seen this trend and now d... their products, ads, promotions and so on with ... and ... of those c... (and many believe they should be compensated for these uses) -Example: College athletes and Electronic Arts video game maker - used their ..., ... and other personal data without their permission or payment Today there are probably a... m... right-to-publicity cases litigated as are right-to-privacy lawsuits. The law is the same, only the ... asserted by the plaintiff is different Use of Name or Likeness ("Right to Publicity") -Courts have spent time trying to define what is and not an illegal use of a name or likeness. 1970s and 80s, expansive view of the concept of use. But beginning in 1990s, narrow this definition Names -Can include ... names, ... names, p... - count the same as real names in eyes of law Example: Lady Gaga name used by wig company in ads for wigs without her consent, does not matter if real name is not used -Only the names of ...! Not ..., ..., ..., other 'things' -But the use of a ... name (Kodak, Crest) can cause other serious legal problems Likeness -Photograph of an individual (obvious) -But the photo doesn't have to be a ... shot! (New York court, Pure Power Boot Camp) -Must be 'c... r...' of '... ...' such the individual would be recognized from the ad itself -Can also be a s.../... -C...-g... image or ... could constitute a use under NY's right of publicity statute -Lindsay Lohan and Take-Two Interactive Software example: New York Court of Appeals ruled proper to dismiss case without commenting on Appellate Division's holding the video game was outside the scope of advertising and trade purposes under New York's right of publicity statute - court held though an ... can qualify as an individual's likeness, the video game doesn't refer to Lohan, use her name or use a photograph of her. Rather, the character was a "generic artistic depiction of a '20-something woman' without any particular identifying characteristics). An indistinct, satirical representation of the style, look, persona of a modern, beach-going woman Whitepages example (use of name and other identifying information like address, middle initial, age range, phone number, relatives' names in free previews to advertise their subscription services) -The additional info beyond their names rendered plaintiffs individually identifiable (using a person's identity for ... purpose!) Voice -Can also be encompassed in a law protecting a name or likeness! -3rd Circuit refused to dismiss lawsuit, son of John Facenda sued NFL Films for using his voice in a commercial vehicle for video game "Madden '06." For years Facenda was voice of NFL Films, but never agreed to have his voice used in a commercial for the video game -The court said his voice had ... value, that the NFL used it for ... purposes and he never ... to such a use (case needed to go to trial) Box: Does a back tattoo qualify as someone's likeness? -The court ruled for the plaintiff (face did not have to be visible) -Rejected argument the artwork was sufficiently t... to protect against the lawsuit (significant elements of the tattoo remained untouched in the final album cover) Celebrities have argued, with some success, the protection of their likeness extends to depictions of ... they played in movies or TV -George McFarland, played Spanky in "The Little Rascals" sued owner of restaurant Spanky McFarland's -Restaurant filled with memorabilia from film series - was triable issue of fact that actor had become so identified with the ... the use of the name in a ... venture would invoke the actor's own image -9th Circuit: A performer doesn't lose the right to control c... e... of their likeness merely by portraying a ... ... in a motion picture or TV series. But not all courts have followed this path! Celebrities have also argued, with some success, their right to publicity was violated when a business used a '...-...' (someone who ... or ... like the celebrity in advertisements) -2012, Old Navy reached settlement with Kim Kardashian over TV commercial, featuring a Kardashian '...' singing while shopping -Kardashian sued, claiming Old Navy and its owner (The Gap) violated her right of publicity. The complaint alleged the ... falsely represented that Kardashian sponsors, endorses, or is associated with Old Navy and the ad was purposefully designed to ..., cause m..., and to d... the public into believing Kardashian ... in the ad! -Bette Midler successfully sued Ford Motor Company when it hired a singer who sounded like Midler, singing one of her hit songs for a soundtrack in a TV ad (not every voice impersonation would be actionable, but when the distinctive voice of a widely known professional singer is deliberately imitated, can amount to appropriation) Will a disclaimer protect an advertiser from an appropriation suit when using a '...' model or '...' singer? ..., if it is ...! -Not small type or audio disclaimer camouflaged by music or noise Even bizarre examples: Vanna White successfully sued Samsung when published magazine ad of a robot wearing a blond wig, evening dress, and jewelry, standing next to a video board similar to the one used on "Wheel of Fortune" (photo was a use of White's image and constituted actionable appropriation)

Appropriation It is illegal to use an individual's name or likeness for commercial or trade purposes without consent. Appropriation is the OLDEST of the four privacy torts. Protects individual's name or likeness from commercial exploitation. Two of the earliest privacy cases on record good examples of how the appropriation tort is supposed to protect an individual from commercial exploitation. 1902, Abigail Roberson of Albany, NY, woke to find picture all over town on posters advertising Franklin Mills Flour. 25,000 copies of the ad placed in stores, warehouses, saloons, other public places. R said she felt embarrassed and humiliated, she suffered greatly from this commercial exploitation and therefore sued for IOP. But she lost her case, New York's Supreme Court ruled "an examination of the authorities leads us to the conclusion the so-called right of privacy has not yet found an abiding place in our jurisprudence, and we as view it, the doctrine cannot now be incorporated without doing violence to settled principles of law by which the profession and the public have long been guided." Following the decision a great controversy arose in NY, led by newspapers and magazines, many of whom expressed outrage at way court treated R. Controversy settled on state legislature, following year (1903), adopted nation's first privacy law. Statute was very narrow; it prohibited a very specific kind of conduct. Use of an individual's name or likeness without the individual's consent for advertising or trade purposes was made a minor crime. In addition to criminal penalty, statute allowed the injured party to seek both an injunction to stop the use of the name or picture and money damages. Two years later, Georgia became the first state to recognize the right of privacy through the common law. Paolo Pavesich, ATL artist, discovered a life insurance company had used his photograph in newspaper ads. P's photograph was used in a before-and-after ad to illustrate a contented, successful man who had bought sufficient life insurance. A testimonial statement also ascribed to the artist. Sued for $25k and won his case before the Georgia Supreme Court, which ruled "the form and features of the plaintiff as his own. The defendant insurance company and its agents had no more authority to display them in public for the purpose of advertising the business than they would have had to compel the plaintiff to place himself upon exhibition for this purpose." Right of Publicity The appropriation tort encompasses two slightly different legal causes of action. One is the right to privacy; the other is the right of publicity. The differences sound legalistic but are quite important! è Traditionally, the right-to-privacy dimension of appropriation was designed to protect an individual from the emotional damage that can occur when a name or likeness is used for a commercial or trade purpose. Imagine how embarrassed Roberson felt the morning she woke to find her picture on all the ad posters. The right to publicity is an attempt to remunerate individuals for the economic harm suffered when their name or picture is used for ad or trade purposes, and they are not compensated for it. The proposition is a simple one: An individual's name or likeness has economic value, and using it without permission is akin to theft. But the difference between emotional harm and economic harm is sometimes easier to state than apply. è The second distinction between the right of privacy and the right of publicity helps resolve this question. Because the right of publicity protects a property right - the economic value in a name or likeness - normally only someone whose name or likeness has a commercial value can successfully allege a violation of their right to publicity. An average person might be embarrassed to find their photo on a box of Wheaties. But it would be very difficult for this average person to argue in a court that General Mills was actually promoting its cereal this way because kids all over America want to eat what they (Jane or John Doe) eats. But kids may want to at the same cereal as LeBron James eats. The names and pictures of these professional athletes have commercial value and would enhance the value of the cereal (or box) in the eyes of consumers. Only well-known people have a legally recognized economic value in their names or likenesses, and except in unusual cases, they are the only ones who can sue for damage to their right to publicity. The average person can only assert emotional damage in a right of privacy suit. 2018, Fox Broadcasting Co. settled $30 million in which company that owned the rights to boxer Ali's identity sued the network for using his voice and life story in a 2017 Super Bowl promotion. The suit claimed Fox's three minute lead-in to the game between the Falcons and Patriots used footage of Ali, audio of his voice and highlights of his life story without permission. è Finally, something that has an economic value (a house, painting, ring, etc.) can usually be passed on to an heir when the owner dies. Something of emotional value, like a reputation or mental health, is gone when its owner passes on. Consequently, it is possible in some states for a celebrity, sports star or some other well-known person who has died to pass on the property right in his or her name to his or her heirs. The heirs can sue for violation of the deceased's right to publicity. Lawyers say the right of publicity is descendible (able to be inherited by descendants). For the rest of the people, their right to privacy dies when they do. Box: Ariana Grande sued Forever 21 over 'look-alike model' in ads 2019, Grande sued F21 for violating her right of publicity. Claimed the retailer tried to trick customers into falsely thinking Grande endorsed its brand by posting photos of her on its social media accounts and using a model who looked similar to the singer. Filed in Los Angeles, lawsuit revolved around imagery from her music video '7 Rings' depicting a pink-tinged house party for Grande and her friends. Grande sued over posts from F21's Instagram account that included snapshots from '7 Rings' and ads in which the look alike model is dressed similarly to her in the video. Example: In one post on F21's account, model wore a hairpiece with two pink puff balls. Caption echoed lyrics from '7 Rings' and asked viewers to shop our favorite trend. In another, model wore camo capris and pink stiletto heels, urging users to 'swipe up to shop.' According to lawsuit, after Grande released hit song 'Thank U, Next' F21 reached out to her representatives to inquire about an endorsement deal. Grande's reps declined because the retailer wasn't willing to pay Grande enough. While Grande was seeking $10 million in damages, lawsuit was paused when F21 filed for bankruptcy. While the legal right to privacy is about 130 years old, the notion of a right to publicity is far younger. Really has only been in past three decades the right-to-publicity litigation has accelerated. Two reasons for this. First is the tremendous growth of the cult of celebrity in the U.S. and the world. Stories and pictures about entertainers, musicians, sports personalities and others overflow traditional mass media and online. Entire publications, TV shows and web sites are devoted to them. Second, American businesses and other organizations have seen this trend and now decorate their products, ads, promotions and so on with likenesses and names of those celebrities. And many of these individuals believe they should be compensated for these uses. Example, many college athletes have brought actions against the video game maker Electronic Arts which has used their likenesses, names and other personal data without their permission and payment. Today there are probably as many right-to-publicity cases being litigated as right-to-privacy lawsuits. The two - right of publicity and the right of privacy - will be intermingled. The law is basically the same; only the damage asserted by the plaintiff in the lawsuit is different. Use of Name or Likeness Courts have spent much time attempting to define what is/not an illegal use of a name or likeness. In the 70s and 80s, most courts seemed to take a very expansive view of the concept of use. But beginning in the 1990s, some appellate courts began to narrow this definition. Summary of cases shows this trend. Everybody knows what a name is. But stage names, pen names, pseudonyms and so forth count the same as real names in the eyes of the law. If the name of singer Lady Gaga is used by a wig company in ads for its wigs without her consent, the wig company cannot successfully defend against her right of publicity lawsuit because her real name is Stefani Germanotta. Only the names of people are protected under appropriation. The names of businesses, corporations, schools and other 'things' are not protected under the law. However, the use of a TRADE NAME like Kodak or Crest can create other serious legal problems. What is a likeness? A photograph of an individual of course. But the photo doesn't have to be a facial shot. NY court ruled it was up to a jury to decide if a photograph in a cosmetics ad of the back of a woman bathing in a stream could be identified as a likeness of the plaintiff, who had been secretly photographed. On the other hand, another NY court ruled in 2011 a physical fitness company called Pure Power Boot Camp didn't violate publicity rights of two of its former drill instructors when it used their images in an ad for Pure Power. Why? Because their backs were turned to the camera and thus they were not recognizable. As the court noted, there must be a 'clear representation' of 'identifying features' such that the individuals would be 'recognizable from the advertisement itself'. A likeness can also be a sketch or a drawing. Reality TV star Gravano of Mob Wives sued Take-Two Interactive Software, creators of GTA V, over the video game character Bottino. NY Court of Appeals held a computer-generated image or 'avatar' may constitute a use under NY's right of publicity statute. The court, however, held the Bottino avatar wasn't recognizable as Gravano. Thus, it was not her 'likeness.' 2020, two individuals filed a lawsuit against Whitepages Inc. and Instant Checkmate LLC, both owners and operators of web sites that sell background reports through monthly subscriptions. Plaintiffs' claims arose on the use of their names and other identifying information (address, middle initial, age range, phone number, and relatives' names) in free previews for the background reports. Both companies used these previews to advertise their subscription services. The court denied the defendants motions to dismiss, holding the free previews were a 'textbook example' of using a person's identity for a commercial purpose. Also held the defendants used the plaintiffs' identities because the additional information beyond their names rendered the plaintiffs individually identifiable. Protecting a voice might also be encompassed in a law protecting a name or likeness. 2008, 3rd US Circuit Court refused to dismiss a lawsuit by the son of John Facenda, sued NFL Films for using his father's distinctive voice in a commercial vehicle promoting the release of the video game "Madden NFL '06" For years, Facenda had been the voice of NFL Films, popular series of video summaries of the NFL games. But he had never agreed to have his voice used in a commercial for the video game. The defendants used 13 seconds of his commentary from the Films series in the promotional TV video to underscore the degree to which the Madden video game authentically re-created the NFL experience. The court said Facenda's voice had commercial value, that the NFL used it for commercial purposes and he had never consented to such a use. Case would have to go to trial. Box: Cardi B sued for appropriation: does a back tattoo qualify as someone's likeness? 2019, Brophy Jr., works in the surfing industry, sued singer B - real name Almanzar - for misappropriation under California's statutory right of publicity and for false light invasion of privacy. The claims arose from B's alleged use of Brophy's likeness on the album cover for a 2016 mixtape. The cover features a tattooed man performing oral - on the singer. Brophy's face is not visible on the cover, but he alleged the man's unique back tattoo belongs to him and the tattoo is a distinctive feature that renders him identifiable to fiends, his business contacts, and the surfing community. The defendants, including B, moved to dismiss the case arguing his face had to be visible to state a valid claim for misappropriation and right of publicity. The court ruled for Brophy. His face did not have to be visible! 2020, same court also rejected defendant's argument the artwork on the cover was sufficiently transformative to protect against Brophy's lawsuit. While the artist who did the cover made some changes, there is no dispute that content he worked with was copied and pasted from a photo of Brophy's tattoo. And significant elements of his tattoo remained untouched in the final album cover. Celebrities have argued - with some success - the protection of their likeness extends to depictions of characters they played in movies or on TV. George McFarland, played Spanky in series of short comedies 'Our Gang' comedies ('The Little Rascals' when shown on TV) sued owner of restaurant called Spanky McFarland's. Eating establishment was filled with memorabilia from the film series. A federal appeals court ruled it was a triable issue of fact as to whether the actor had become so identified with the character the use of the name in a commercial venture would invoke McFarland's own image. 9th US Circuit Court reached same conclusion when Wendt and Ratzenburger sued restaurant chain instaling animatronic robots that looked like Norm Peterson and Cliff Clavin ("Cheers"). The court said a performer doesn't lose the right to control commercial exploitation of their likeness merely by portraying a fictional character in a motion picture or TV series. But not all courts have followed this path (federal court in New York, 2008, state statute didn't extend to fictitious characters adopted or created by celebrities) Box: Lacey Jonas or Lindsay Lohan? 2014, actress Lohan sued video game maker Rockstar Games and distributor Take Two Interactive over a character featured in game GTA V. Despite prominent placement in game's marketing, Jonas is a minor character in the game. Players in the game tasked with enduring Jonas, a vain, vapid, demanding and self-indulgent actress, while attempting to outrun paparazzi. Lohan claimed character, combined with cover art and promotional material, constituted an 'unequivocal' use of her likeness without her permission. Initially, five-judge panel in the Manhattan Appellate Division ruled the lawsuit was without merit. Even if Rockstar found inspiration in L, court reasoned, video game's unique story, characters, dialogue and environment, combined with player's ability to choose how to proceed in the game' rendered it a work of fiction and satire. Even if the in-game character constituted a representation of L, the video game didn't fall under the statutory definition of 'advertising' or 'trade' Four years after the suit was initially filed, the NY Court of Appeals heard the case in 2018. The court ruled it was proper to dismiss the case without commenting on the Appellate Division's holding the video game was outside the scope of advertising or trade purposes under NY's right of publicity statute. Instead, the court ruled the video game didn't use Lohan's voice or portrait. The court held although an avatar (or graphical computer representation of a person) could qualify as an individual's likeness, the video game didn't refer to L, use L's name or use a photograph of L. Rather, the character of Jonas was a 'generic artistic depiction of a 'twenty something woman' without any particular identifying characteristics. Indistinct, satirical representations of the style, look, and persona of a modern, beach going woman. Other celebrities have argued - again, sometimes successfully - their right to publicity was violated when a business used someone who looked like or sounded like the celebrity in its advertisements. 2012, Old Navy reached settlement for an undisclosed amount with Kardashian over TV commercial "Super C-U-T-E" Featured Kardashian look-alike named Molinaro singing while shopping. K sued, claiming Old Navy and its owner, The Gap, violated her right of publicity. Complaint alleged the ad featuring Molinaro 'falsely represents that Kardashian sponsors, endorses, or is associated with Old Navy" and the ad was purposefully 'designed and intended to confuse, to cause mistake and to deceive the public into believing' Kardashian appeared in it. Bette Midler successfully sued the Ford Motor Company when it hired a singer who sounded almost exactly like Midler to sing one of her hit songs for a soundtrack in a TV advertisement. Federal appeals court ruled, the singer manifests herself in the song. To impersonate her voice is to pirate her identity. Not every voice impersonation would necessarily be actionable, the court said. But when the distinctive voice of a widely known professional singer is deliberately imitated, this can amount to an appropriation. Other performers have filed similar actions against advertisers. Will a disclaimer protect an advertiser from an appropriation suit whn a look-alike model or sound-alike singer is used? Yes, if the disclaimer is prominent. Small type at the bottom of a full-page ad will not do the trick, nor will an audio disclaimer camouflaged by music or noise in a radio or TV spot. A high-water mark (or low-water mark, depending on POV) in the battle by celebrities against advertisers came in 1992 when TV personality Vanna White successfully sued electronic manufacturers Samsung when it published a newspaper and magazine ad that depicted a robot, reminiscent of C3PO of "Star Wars" fame, wearing a blond wig, evening dress and jewelry, standing next to a video bord similar to the one used on 'Wheel of Fortune'. The ad was supposedly saying Samsung electronic products would still be state of the art long after White had been replaced by an android. A federal court ruled this photo was a use of White's image and constituted an actionable appropriation.

Traditional Judicial Remedies For more than 200 years American judges have had tools to try and mitigate/lessen the impact p... p... might have on a trial. Range from carefully examining potential jurors about their knowledge of the case, moving the trial, delaying a hearing while publicity abates As a last resort a criminal conviction can be r... if there is evidence the trial was tainted by p...! But this last resort is c... because it usually involves a r..., resulting in added expense and inconvenience for all parties involved! These traditional judicial tools, sometimes called trial-level remedies, permit the court to reduce the impact of the p... on the trial without inhibiting the p... in any way! 1. Voir Dire Before prospective jurors make it to the jury box, they are ... by attorneys in the case and oftentimes the judge. These i... are designed to protect the judicial process from jurors who have already m... u... their m... about the case or who have s... b... toward one party/the other In a process called voir dire (French for "to t... the t..."), each prospective juror is ... prior to being impaneled in an effort to discover b...! P... p... is but one source of juror prejudice! Examples: If the prospective juror is the mother of a police officer, likely to be b... if the defendant is on trial for shooting a police officer. Juror is a business associate of the defendant. Juror says she doesn't believe in psychology or psychiatry, and the defendant intends to use an insanity defense When a pool of potential jurors (called the ve...) is assembled, a p... s... may take place through the use of a written questionnaire Example: The jury selection process for the trial of the Holmes CO theater shooting case was one of the longest and most complex on record. The court summoned 9k potential jurors, 403 asked face-to-face questions over 38 days. After this in... s..., both sides in case then question remaining members of the ve..., and either side can ask the court to e... a potential juror! This procedure is called challenging a juror! Two kinds of challenges 1. Challenges for c... (challenging a juror for ...) - an attorney must convince the court there is g... r... for this person not to sit on the jury Examples: Deep-seated prejudice, being an acquaintance of one of the parties Any r... can be used to challenge a potential juror; all the attorney must do is convince the judge the r... is p...! No limit on the number of challenges for c... both prosecutor and defense attorney may make 2. P... challenges - This challenge can be exercised without c..., and the judge has no power to r... such a challenge! But there is a l... on the number of such challenges that may be exercised Sometimes as few as 2/3 and as many as 10/20 allowed depending on the c..., kind of c... involved, s... s... and sometimes the j... This kind of challenge is reserved for use against people whom the defense or prosecution doesn't want on the jury but whom the judge refuses to excuse for c...! An attorney may have an intuitive h... about a potential juror and want them eliminated from the final panel or the juror's s... or e... b... may suggest a problem to the attorney To select jury members for the typical criminal trial, attorneys rely on the a... to ... they ask potential jurors and on their in...; in the occasional high-profile trial it isn't uncommon for attorneys on both sides to undertake a far d... s... of the panel of potential jurors Is voir dire a good way to screen p... jurors? Most judges including Supreme Court justices place f... in the VD process and believe if effectively used it can effectively weed out b... jurors Most ... say they agree VD can be effective, to a p...; it is still difficult to argue with critics who say VD uncovers only the p... the prospective juror is a... of or that isn't too e... to ad...! B... jurors can l... when questioned about their b... - or they may not even know their mind is made up about the g.../i... of the defendant - and the prejudices may have nothing to do with p... c... of the crime! May be p... against the defendant because of their r..., the kind of w... they do, or the n... they live in! 2. Change of Venue A serious crime that has been heavily publicized in one community might have received little press coverage in another in the state! The court can (to impanel a jury of citizens who know much .. about the case) move the trial to the s... c...! Change of venue = change of the l... of the t... If this relocation of the trial is ordered, all participants in the trial (prosecutor, defense attorney, judge, defendant, witnesses) go to this new location for the trial. The jury is selected from citizens in the n... c... A trial in a ... court can be moved to any other venue in the same ...; a ... case can be moved to any other ... court, but keeping the trial as close to the s... of the c... is considered desirable Example: The federal trial of the defendants charged with bombing the federal building in Oklahoma City was moved to Denver, a city in the adjacent state of CO. The move out of state rather than to another city in OK was prompted by the need to find courtroom facilities that could accommodate a trial of that magnitude Change of venue is c...! W..., a..., and others must be t... and h... and f... while the trial takes place in a distant city. The defendant must surrender the constitutional right to a trial in the d... in which the c... was c... P... about the case could appear in the media located in the community in which the trial is now scheduled to be held, defeating the purpose of a change of venue. Often the effectiveness of a change of venue depends on how far the trial is moved from the c... in which the c... is c...! Example: A trial judge in WA was concerned about newspaper coverage of a local murder case, granted a change of venue. But he moved the trial to an a... c..., the only other c... in the state which the "offending" newspaper had significant circulation. The move accomplished little, and the judge was forced to close portions of the proceeding to the press The concept that a change of venue might reduce the problem of a biased jury is constructed on the notion that publicity about a crime is, in all but rare instances, l... in nature. The people of Jamesville may have made up their minds because of intense publicity, but the publicity in Raymond Town, 250 miles away, was not as intense But we are living in an age of the ..., when high profile cases get coverage on n... c... n... n..., and it is just as easy to spread a message across a s... or r... as it is to spread that message in a l... v...! Whether this will have an impact on whether a change of venue remains a viable solution to the problem of potential juror prejudice remains an o... q... While a change of venue can reduce the risk of p... p... influencing a jury, other equally problematic factors may be introduced in trial! The difference in e... and r.. c... of one community to another could possibly change the o... of the trial! Example: When the trial of four ... police officers accused of beating Rodney King, a ... man, was moved to a largely ... distant suburb of Los Angeles in a change of venue, three of the officers were acquitted of the charges and the jury failed to reach a verdict regarding the fourth officer. This occurred despite the fact the beating was captured on videotape by a bystander. The officers' federal trial for violation of King's civil rights was held in the city of Los Angeles with a r... m... jury, and all of the officers were convicted In some states it is possible for the defense to seek a... 3. Change of veniremen than a change of venue Instead of moving the trial to another city, the court i... a j... p... from a d... c...! Example: During the trial of Casey Anthony, the judge brought in a jury from Clearwater, FL, about 100 miles away from where the trial was being held in Orlando. A large segment of the population in Orlando had not only heard of the case, but scores protesting against the defendant, whose daughter was missing for six months before her decomposed body was found near her home. When this procedure is employed, it usually means the judge and attorneys visit the d... c... and select a j... p..., then t... the j... to the community in which the trial will be held. This procedure costs the state l... m..., since all it must do is pay the expenses of the jurors for the duration of the trial

Traditional Judicial Remedies For more than 200 years American judges have had tools at their disposal to try to mitigate or lessen the impact pretrial publicity might have on a trial. These tools range from carefully examining potential jurors about their knowledge of the case, to moving the trial, to delaying a hearing while publicity abates. As a last resort a criminal conviction can be REVERSED if there is evidence the trial was tainted by publicity. But this last resort is costly because it usually involves a retrial, resulting in added expense and inconvenience for all parties involved. These traditional judicial tools, sometimes called trial-level remedies, permit the court to reduce the impact of the publicity on the trial without inhibiting the press in any way. Trial-level remedies for pretrial publicity: Voir dire, change of venue, change of veniremen, continuance, admonition, sequestration 1. Voir Dire Before prospective jurors finally make it to the jury box, they are questioned by the attorneys in the case and oftentimes the judge. These interviews are designed to protect the judicial process from jurors who have already made up their minds about the case or who have strong biases toward one party or the other. In a process called voir dire (French for "to tell the truth"), each prospective juror is questioned prior to being impaneled in an effort to discover bias. Pretrial publicity is only one source of juror prejudice! If the prospective juror is the mother of a police officer, she is likely to be biased if the defendant is on trial for shooting a police officer. Perhaps the juror is a business associate of the defendant. Possibly the juror says she doesn't believe in psychology or psychiatry, and the defendant intends to use an insanity defense. When a pool of potential jurors (called the venire) is assembled, a preliminary screening may take place through the use of a written questionnaire. The jury selection process for the trial of Holmes for the "Dark Knight" Aurora, CO theater shooting case was one of the longest and most complex on record. The court summoned 9,000 potential jurors, 403 of whom were asked face-to-face questions over 38 days. After this initial screening, both sides in the case then question the remaining members of the venire, and either side can ask the court to excuse a potential juror. This procedure is called challenging a juror. There are two kinds of challenges: challenges for cause and peremptory challenges: To challenge a juror for cause, an attorney must convince the court there is a good reason for this person not to sit on the jury. Deep-seated prejudice is one good reason. Being an acquaintance of one of the parties in the case is also a good reason. Any reason can be used to challenge a potential juror. All the attorney must do is convince the judge the reason is proper. There is no limit on the number of challenges for cause that both prosecutor and defense attorney may exercise A peremptory challenge is somewhat different. This challenge can be exercised without cause, and the judge has no power to REFUSE such a challenge. There is a limit, however on the number of such challenges that may be exercised. Sometimes there are as few has 2 or 3 and sometimes as many as 10 or 20, depending on the case, the kind of crime involved, the state statute and sometimes the judge. This kind of challenge is reserved for use against people whom the defense or the prosecution doesn't want on the jury but whom the judge refuses to excuse for cause. An attorney may have an intuitive hunch about a potential juror and want that person eliminated from the final panel. Or the juror's social or ethnic background may suggest a problem to the attorney. To select jury members for the typical criminal trial, attorneys rely on the answers to questions they ask potential jurors and on their intuition. In the occasional high-profile trial it is not uncommon for attorneys on both sides to undertake a far deeper scrutiny of the panel of potential jurors. Is voir dire a good way to screen prejudiced jurors? Most judges, including Supreme Court justices, place faith in the voir dire process and believe that, if correctly used, it can effectively weed out biased jurors. Most lawyers say they agree that voir dire can be effective, to a point. It is still difficult to argue with critics who say that voir dire uncovers only the prejudice the prospective juror is aware of or is not too embarrassed to admit. Biased jurors can lie when questioned about their biases. They may not even know their mind is made up about the guilt or innocence of the defendant. And the prejudices may have nothing to do with pretrial news coverage of the crime! Potential jurors may be prejudiced against defendants because of their race, the kind of work they do or the neighborhood in which they live. 2. Change of Venue A serious crime that has been heavily publicized in one community might have received scant (little) press coverage in another community in the state. The court can, in order to impanel a jury of citizens who know much less about the case, move the trial to the second community. This change of the location of the trial is called a change of venue. If this relocation of the trial is ordered, all the participants in the trial - prosecutor, defense attorney, judge, defendant, witnesses and others - go to this new location for the trial. The jury is selected from citizens in the new community. A trial in a state court can be moved to any other venue in the same state. A federal case can be moved to any other federal court, though keeping the trial as close as possible to the site of the crime is considered desirable. The federal trial in 1997 of the defendants charged with bombing of the federal building in Oklahoma City was moved to Denver, a city in the adjacent state of CO. In that case the move out of state rather than to another city in OK was prompted by the need to find courtroom facilities that could accommodate a trial of that magnitude. Change of venue is costly! Witnesses, attorneys and others must be transported and housed and fed while the trial takes place in a distant city. The defendant must surrender the constitutional right to a trial in the district in which the crime was committed. Publicity about the case could appear in the media located in the community in which the trial is scheduled to be held, defeating the purpose of the change of venue. Often the effectiveness of the change of venue depends on how far the trial is moved from the city in which the crime was committed! Example: A trial judge in WA state who was concerned about newspaper coverage of a local murder case granted a change of venue. But he moved the trial to an adjoining county, the only other county in the state in which the "offending" newspaper had significant circulation. The move accomplished very little, and the judge ultimately was forced to close portions of the proceeding to the press. The concept that a change of venue might reduce the problem of a biased jury is constructed on the notion that publicity about a crime is, in all but rare instances, local in nature. The people of Jamesville may have made up their minds because of the intense publicity, but the publicity in Raymond Town, 250 miles away, was not as intense. But we are living in an age of the Internet, when high profile cases get gavel-to-gavel coverage on national cable news networks, and it is just as easy to spread a message across a state or region as it is to spread that message in a local venue. Whether this will have an impact on whether a change of venue remains a viable solution to the problem of potential juror prejudice remains an open question. While a change of venue can reduce the risk of prejudicial PUBLICITY influencing a jury, other equally problematic factors may be introduced in the trial. The difference in the ethnic and racial composition of one community as opposed to another could possibly change the outcome of a trial. Example: When the 1992 trial of four white police officers accused of beating Rodney King, a Black man, was moved to a largely white distant suburb of Los Angeles in a change of venue, three of the officers were acquitted of the charges and the jury failed to reach a verdict regarding the fourth officer. This occurred despite the fact the beating was captured on videotape by a bystander. The officers' federal trial for violation of King's civil rights was held in the city of Los Angeles with a racially mixed jury, and all of the officers were convicted. In some states it is possible for the defense to seek a 3. change of veniremen rather than a change of venue! Instead of moving the trial to another city, the court imports a jury panel from a distant community. Example: During the 2011 trial of Casey Anthony, the judge brought in a jury from Clearwater, FL, about 100 miles away from where the trial was being held in Orlando. A large segment of the population in Orlando had not only heard of the case, but scores had been protesting against the defendant, whose daughter was missing for about six months before her decomposed body was found near her home. When this procedure is employed, it usually means the judge and attorneys visit the distant communities and select a jury panel, then transport the jurors to the community in which the trial will be held. This procedure costs the state less money, since all it must do is pay the expenses of the jurors for the duration of the trial.

Laws that Restrict Access to Information Just as there are laws that provide for public access to government-held documents, there are laws that specifically prevent access to government-held information! There are provisions in scores of federal laws alone that limit right to access (e.g., t... statutes, e... laws, legislation on a... e... and dozens others filled with limitations on the dissemination of information [p... ... on t..., n... s... questions, matters relating to n... w...]) But in addition to these kinds of laws, the federal government has adopted in the past four decades at least ... broad sets of r... regarding information held by the government. All ... were adopted in the name of ... the right to ...! School Records Family Education Rights and Privacy Act (FERPA) adopted in 1974 and also known as the ... A..., is a federal law designed to safeguard the privacy of ...' ... records. Applies to ... levels of schools that receive f... under any program by the ... ... of ... FERPA affects -... can access ... records (defined as records "directly related to the ..." that are maintained by an ... agency or institution), and -What information a school may or may not ... without the permission of either a ... or ... -Most recent amendments to its regulations interpreting FERPA took effect in 2009 Under FERPA, ... can inspect their ... ... records until their ... turns ... or attends a school beyond the ... ... level ... cannot access ... records of their ...-attending ..., unless their ... grants them ... p... Exceptions permit disclosure to a ...'s ... without consent if (1) the ... is a d... for f... ... p..., (2) there is a h... or s... e... involving the ..., (3) the ... is under ... and ... a law or policy concerning ... or ... of a... or c... s... FERPA impacts journalists covering colleges and universities because it generally prohibits such institutions from d... a ...'s ... records, without that ...'s p... ..., if the records contain "p... ... information" -This information involves a student's ..., a..., d... and p... of ..., ... ... n... and ... ... n..., as well as (under regulations that took effect in 2009) "any other information that is linked or linkable to a s... ... that would allow a ... p... in the ... c... who doesn't have p... k... of the r... c... to identify the ... with r... c..." -Any and all such ... ... information when located in a student's ... records (like a t... or d... r...) needs to be redacted before records could be ... without p...! -The ... and a... of a ...'s ... (including ...'s ... n...) and ... m... also cannot be disclosed without permission On the other hand, FERPA allows disclosure without consent of so-called d... ... (a student's ..., m..., a... and ... n... for instance) that might be listed in an ... or ...-c... s... ...! However, colleges must tell students about ... information and given them a chance to request its n...; students must have n... and o... to ... o... of the disclosure! Critical for student journalists reporting on campus crime: ... records do not include "records maintained by a ... ... unit of the educational agency or institution that were created by that ... ... unit for the purpose of ... ..." (in... r..., a... r..., p... t... and other documents made by c... or u... ... are not ... records covered by FERPA and may be obtained without ... p...!) Example: North Carolina judge ruled FERPA ... protect from disclosure information in the UNC's statements of facts and responses submitted to the NCAA and relating to impermissible benefits received by student-athletes such as plane tickets, jewelry, clothing, etc. The judge in case stated "This kind of behavior (impermissible benefits = nonacademic) does not relate to the classroom, test scores, SAT or ACT scores, academic standing or anything else relating to a student's e... p... or d... for violating the e... r... or honor code, all of which are clearly protected by FERPA" Victory came for news organizations when UNC agreed to settle the case, produce the records the judge ordered and pay $45k of their legal fees Example: News organizations won another lawsuit against UNC. The student newspaper (Daily Tar Heel) sought records detailing any incidents in which students or faculty were found responsible for allegations of rape, sexual assault or sexual harassment. UNC denied the request, and a trial judge initially ruled in university's favor. But the North Carolina Court of Appeals reversed the ruling. Highlighted FERPA allows universities to disclose "f... r... of any d... p... if the institution determines as a result of that proceeding the student committed a violation of the institution's rules or policies with respect to such crime or offense" In other words, FERPA did not prohibit disclosure of student d... r... related to sexual offenses, and instead, the state's public records act r... the requested records to be released. North Carolina Supreme Court upheld the decision Numerous universities invoke FERPA (sometimes rightly, sometimes wrongly) to hide potentially damaging information about their a... p..., s...-..., and even their b.../d... Example: ETSU claimed the number of athletes treated for concussions was a FERPA-protected secret. When the Johnson City Press asked for the number of times football players suffered concussions during practices and games, an ETSU lawyer responded the information fell into the education record category Supreme Court (2002) issued 7-2 majority interpreting FERPA and ruled FERPA ... give students the ... right to ... their schools for releasing personal material covered by that statute. The remedy for violation, the court held, is not an in... ... but solely the loss to schools of ... f... Health and Medical Records A new set of privacy rules and regulations went into effect in 2003 that limit the ability of journalists to obtain information about ... in h... and in the custody of other ...-c... p.... - rules officially known as the Federal Standards for Privacy of Individually Identifiable Health Information, enacted pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) In a white paper ("The Lost Stories") Reporters Committee for Freedom of the Press observed "under HIPAA, ... may release only the ... and ...-w... s... of the ... - but only if the ... has agreed to have their ... released and then only if the reporter has the individual's f... ..." ... and ... departments, along with other ... ... agencies are not entities covered by HIPAA HIPAA does not give ... the power of right to keep ... information in their reports and logs about a... or s... ... The entities covered by HIPAA are ... p..., ...-... c... and ...-... p... One very important statement on HIPAA (Department of Health and Human Services) for journalists relates to the relationship between HIPAA and ...-... r... law: "If a state agency isn't a 'covered entity' it is not required to comply with the ... ... Rule, and thus any disclosure of information by the state agency pursuant to its ... ... ... law would not subject to the ... Rule" Entities not covered by HIPAA cannot hid behind it to keep ... s... that is otherwise ... under a state law!!! In... s... of HIPAA still occur! Example: Nebraska judge cited HIPAA when denying a historical society's request for records identifying 957 people buried in graves marked only by numbers at a psychiatric institution's cemetery from the 1880s-1950s. The records are held by the Hastings Regional Center, a health-care provider. Though the burial records obviously related to individuals ... for many decades and despite the general legal maxim that an individual's ... ... with the ..., Judge found the records constituted "in... id... h... information" protected from disclosure by HIPAA and their release Nebraska Supreme Court reversed lower court's decision and allowed access to the names. "Although HIPAA prevents release of the in... id... ... information, it also provides for release of information when required by ... law! Nebraska's public records statutes require medical records be kept confidential, but exempt ... and ... records from that requirement" The Federal Privacy Law Privacy Act of 1974 has two basic thrusts: 1. It attempts to check the m... of p... ... 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 a... t... that are held by federal agencies The first objective of the law could be the more troublesome to the press! Requires each federal agency ... the collection of information to that which is r... and n..., to collect information d... from the ... concerned when possible and to allow individuals to r... and a... their ... ... records and information Also agencies are forbidden from disclosing what is called "... id... record" without ... c... of the individual to whom the record pertains" -This section of the law is seemingly c... to the spirit of the federal ..., Congress was forced to clarify the responsibilities of federal agencies with regard to the law -A provision was added that declares records ... to be disclosed under ... aren't subject to the provisions of the Privacy Act and consequently cannot be withheld from inspection There is ... between the ... and Privacy Act! "Where the ... ... disclosure, the Privacy Act will not stand in the way, but where the ... would p... w... under an e..., the Privacy Act makes such w... m... upon the agency! U.S. Supreme Court held in Federal Aviation Administration v. Cooper that plaintiffs who win cases under the Privacy Act because a government agency wrongfully disclosed private information about them cannot recover ... ... for m... or ... d... allegedly caused by the disclosure In an example of court engaging in ... ..., Justice Alito wrote for majority the term "... d..." used within the Privacy Act is limited to proof of tangible e... and m... l..., akin to ... d... in defamation law How does the Privacy Act of 1974 affect journalists? When journalists receive information from confidential sources that was leaked by those sources in violation of the Privacy Act of 1974, these journalists may be s... to t... in ... a... filed by the individuals whom the leaked information pertains. The person whose information is leaked in violation of the Privacy Act will file a ... under the act and then try to find out who leaked it by ... the journalists who received it from confidential sources Criminal History Privacy Laws In accordance with the Omnibus Crime Control and Safe Streets Act of 1968, federal Law Enforcement Assistance Administration (agency created by Nixon administration to help local police forces fight crime) sought to develop a n... c... r...-... system. System established permits any police department in the nation to have access to records of virtually all other police departments Congressional concern about the m... of the record system led to l... on a... to the data Police records have always contained a considerable amount of information that is e..., o...-of-..., or p...; the c... r...-k... system presents a problem, "d... e..." The contrast between these c... and c... maintained records im... ... across the country and those police records of the past was sharp and immediately evident: F..., original-source records kept by a ... police agency for a ... geographical area were not readily ... because of their b... and associated in... problems! Federal policy mandated that if states wished to participate in the n... r...-... system needed to adopt rules that l... the d... of some criminal history, n...-c... data! "Code of Federal Regulations" ("Criminal Justice Information Systems") defines n...-c... data as: "A... information without disposition if an interval of ... ... has elapsed from the date of the ... and no active p... of the charge is pending, or information disclosing the police have elected not to refer a matter to a ..., or that a ... has elected not to commence c... p..., or that p... have been in... p..., as well as all a... and all d..." As a result of the ... laws, press access to c... h... records kept by the ... has been v... ... unless data sought are p... to an in... for which a person is currently being p... by the criminal justice system, are c... r... or are o... r... for e... (such as a... records) that are maintained c... and are accessible only on that basis. Reporters can also obtain information about a... not resulting in c..., however, if they are aware of the s... d... of the a...! It is hard to determine whether these laws have substantially affected the press's ability to report on the criminal justice system A good police reporter can usually gain access to information they want to see. The ability to achieve that scrutiny is important! Example: It is possible to envision a situation in which a prosecutor is accused of favoring friends or certain ethnic or racial groups when deciding whether to prosecute arrested persons. Without access to a... records that can be compared with p... records, such a charge would be difficult to investigate. People within the criminal justice system could gain access to the needed records, but history indicates they must be prodded before they take action. And of course prodding is the function of the press! State Statutes that limit access to information All states have statutes that limit access to information that would otherwise be available under a ...-of-... law! Example: Washington has more than 100 laws that govern access to particular information. Some of these state statutes are aimed at blocking access to trade secrets; others limit access to info submitted to the state in compliance with environmental laws In direct response to the death of Dale Earnhardt at Daytona 500 and the request for a... ... by newspapers, Florida legislature passed a bill that makes confidential and exempt from that state's public records act ... and ... of ....!The newspapers had sought access to the ... to determine the reasons for Earnhardt's death and in particular whether a particular safety device might have saved his life. Florida appellate court upheld constitutionality of that statute and its retroactive application, and the Supreme Court of Florida declined to hear the case, letting appellate court decision stand. VS. The Penn. Supreme Court ruled in 2009 ... reports are official records subject to disclosure under PA's open-records law. The PA high court noted, however, that trial court judges may protect ... reports from disclosure based on j... d... and n... under appropriate circumstances, "this inherent power provides trial courts with the means to limit public access to ... reports (or portions) based on privacy or privilege concerns where warranted" ... is another area where some states adopt statutes limiting public access to certain records. Example: California appellate court struck down state statute that allowed a party in a ... case, upon request to a judge, to have sealed in their entirety any and all court documents referencing in any way the financial assets and liabilities of the parties getting ... Though the court acknowledged privacy interests of ... parties in financial information (including possibility of identity theft), it nonetheless found "1A provides right of access to court records in ... proceedings" and held the statute was overbroad and not narrowly tailored to protect privacy interests. In particular, statute mandated a judge to automatically seal in their entirety court pleadings relating to financial information even if they just briefly mentioned the information, rather than providing the judge with discretion to redact only those specific parts of the documents relating to financial information that actually could harm privacy interests. Courts in other states have struck down similar laws - sometimes based on a ... ... right of ..., sometimes based on ... ... right of ... Remember: All the states and federal government have laws that specifically exclude certain kinds of information from public scrutiny! Today the right of ... has been erected as a s... b... to access to information held by government agencies

Laws that Restrict Access to Information Just as there are laws that provide for public access to government-held documents, there are laws that specifically prevent access to government-held information. There are provisions in scores of federal laws alone that limit right to access. Tax statutes, espionage laws, legislation on atomic energy and dozens of other kinds of laws filled with limitations on the dissemination of information (personal information on taxes, national security questions, matters relating to nuclear weapons). But in addition to these kinds of laws, the federal government has adopted in the past four decades at least three broad sets of regulations regarding information held by the government. All three were adopted in the name of protecting the right to privacy. People who gather information for a living need to be aware of their implications. School Records The Family Educational Rights and Privacy Act (FERPA) adopted in 1974 and also known as the Buckley Amendment, is a federal law designed to safeguard the privacy of students' "education records." Applies to all levels of schools (grade schools, high schools, universities) that receive funds under any program by the U.S. Department of Education. FERPA affects: è Who can access education records (defined as records "directly related to the student" that are "maintained by an educational agency or institution"), and è What information a school may or may not disclose without the permission of either a student or parent The most recent amendments to its regulations interpreting FERPA took effect in 2009. Under FERPA, parents can inspect their child's education records until their child turns 18 or attends a school beyond the high school level. In general, parents cannot access education records of their college-attending child, unless their child grants them written permission. Exceptions permit disclosure to a student's parents without consent if (1) the student is a dependent for federal tax purposes, (2) there is a health or safety emergency involving the student, or (3) the student is under 21 and violated a law or policy concerning use or possession of alcohol or controlled substances. FERPA impacts journalists covering colleges and universities because it generally prohibits such institutions from disclosing a student's education records, without that student's prior consent, if the records contain "personally identifiable information." Such information includes a student's name, address, date and place of birth, SSN and student identification numbers, as well (under regulations that took effect in 2009) any "other information that is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty" Any and all such personally identifiable information, when located in a student's education records (like a transcript or discipline report) would need to be redacted (blacked out or removed) before records could be disclosed without permission. The names and addresses of a student's parents (including mother's maiden name) and family members also cannot be disclosed without permission. On the other hand, FERPA allows disclosure without consent of so-called directory information (a student's name, major, address and telephone number, for instance) that might be listed an online or hard-copy student directory. However, colleges must tell students about directory information and give them a chance to request its nondisclosure; in brief, students must have notice and opportunity to opt out of the disclosure. In a portion of FERPA critical for student journalists reporting on campus crime, FERPA states education records do not include "records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement" In other words, incident reports, arrest reports, parking tickets and other documents made by campus or university police are not "education records" covered by FERPA and may be obtained without student's permission! Example: 2012, North Carolina judge ruled FERPA did not protect from disclosure information in the UNC's statements of facts and responses submitted to the NCAA and relating to impermissible benefits received by student-athletes such as plane tickets, jewelry, clothing, shoes, automobiles, payments to cover parking tickets, monetary gifts, and free meals. The judge in case stated "This kind of behavior (impermissible benefits - nonacademic) does not relate to the classroom, test scores, SAT or ACT scores, academic standing or anything else relating to a student's educational progress or discipline for violating the education rules or honor code, all of which are clearly protected by FERPA" Victory came for news organizations when UNC agreed to settle the case, produce the records the judge ordered and pay $45k of their legal fees The Daily Tar Heel and other news organizations recently won ANOTHER lawsuit against UNC. The student newspaper sought records detailing any incidents in which students or faculty members were found responsible for allegations of rape, sexual assault or sexual harassment. UNC denied the request, and a NC trial judge initially ruled in university's favor. But the North Carolina Court of Appeals reversed the ruling in 2018. In DTH Media Corporation v. Folt, the state appeals court highlighted FERPA allows universities to disclose "final results of any disciplinary proceeding if the institution determines as a result of that proceeding the student committed a violation of the institution's rules or policies with respect to such crime or offense" In other words, the appeals court held, FERPA did not prohibit disclosure of student disciplinary records related to sexual offenses, and instead, the state's public records act required the requested records to be released. In 2020, North Carolina Supreme Court upheld the court of appeals' decision. Numerous universities invoke FERPA (sometimes rightly, sometimes wrongly) to hide potentially damaging information about their athletic programs, student-athletes and even their boosters/donors. 2017, East Tennessee State University claimed the number of athletes treated for concussions was a FERPA-protected secret. When the Johnson City Press asked for the number of times football players suffered concussions during practices and games, an ETSU lawyer responded the information fell into the education record category. In 2002, Supreme Court issued 7-2 majority interpreting FERPA and ruled FERPA does not give students the personal right to sue their schools for releasing personal material covered by that statute. The remedy for violation, the court held, is not an individual lawsuit but solely the loss to schools of federal funds. Health and Medical Records In 2003, new set of privacy rules and regulations went into effect that limit the ability of journalists to obtain information about patients in hospitals and in the custody of other health-care providers. The rules, officially known as the Federal Standards for Privacy of Individually Identifiable Health Information, were enacted pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). In a white paper called "The Lost Stories" LaFleur of the Reporters Committee for Freedom of the Press observed "under HIPAA, hospitals may release only the name and the one-word status of the patient - but only if the patient has agreed to have their name released and then only if the reporter has the individual's full name" Police and fire departments, along with other law enforcement agencies, are not entities covered by HIPAA. Thus HIPAA doesn't give the police the power or right to keep secret information in their reports and logs about accident or shooting victims. The entities covered by HIPAA, are health plans, health-care clearinghouses and health-care providers. Department of Health and Human Services maintains Web site devoted to HIPAA and its privacy provisions. Journalists seeking information from health-care providers should be familiar with its myriad relevant terms and provisions. One very important statement for journalists relates to the relationship between HIPAA and state-open records laws. "If a state agency is not a 'covered entity' it is not required to comply with the HIPAA Privacy Rule, and thus, any disclosure of information by the state agency pursuant to its state public records law would not subject to the Privacy Rule" Entities not covered by HIPAA cannot hide behind it to keep information secret that is otherwise open under a state law. Inappropriate stretches of HIPAA still occur! 2008, Nebraska judge cited HIPAA when denying a historical society's request for records identifying 957 people buried in graves marked only by numbers at a psychiatric institution's cemetery in Hastings from the 1880s through the late 1950s. The records are held by the Hastings Regional Center, a health-care provider. Though the burial records obviously related to individuals deceased for many decades and despite the general legal maxim that an individual's privacy dies with the individual, Adams County District Judge Harder found the records constituted "individually identifiable health information" protected from disclosure by HIPAA and their release "would reveal the individuals were institutionalized for mental illness or for condition serious enough to require institutionalization" 2009, however, Nebraska Supreme Court reversed lower court's decision and allowed access to the names. "Although HIPAA prevents release of the individually identifiable medical information, it also provides for release of information when required by state law. Nebraska's public records statutes require medical records be kept confidential, but exempt birth and death records from that requirement. Our privacy laws also apply to medical records and patient histories, but not to records of death. The records sought by ACHS are records of death and therefore are public records" The Federal Privacy Law The Privacy Act of 1974 has two basic thrusts: 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! The act requires each federal agency limit the collection of information to that which is relevant and necessary, to collect information directly from the subject concerned when possible and to allow individuals to review and amend their personal records and information. Also under the act agencies are forbidden from disclosing what is called a "personally identifiable record" without written consent of individual to whom the record pertains. This section of the law is seemingly contradictory to the spirit of the federal FOIA, Congress was forced to clarify the responsibilities of federal agencies with regard to the law. A provision was added to the Privacy Act that declares records required to be disclosed under FOIA are not subject to the provisions of the Privacy Act and consequently cannot be withheld from inspection. To the government official with control of information, however, neither the Privacy Act nor FOIA is unambiguous (not open to more than one interpretation). One federal appellate court summed up the tension between FOIA and the Privacy Act, writing "the net effect of the interaction between the two statutes is that where the FOIA requires disclosure, the Privacy Act will not stand in the way, but where the FOIA would permit withholding under an exemption, the Privacy Act makes such withholding mandatory upon the agency" 2012, U.S. Supreme Court held in Federal Aviation Administration v. Cooper that plaintiffs who win cases under the Privacy Act because a government agency wrongfully disclosed private information about them cannot recover monetary damages for mental or emotional distress allegedly caused by the disclosure. In an example of court engaging in statutory construction, Justice Alito wrote for majority the term "actual damages" used within the Privacy Act is limited to proof of tangible economic and monetary losses, akin to SPECIAL DAMAGES in defamation law. How does the Privacy Act of 1974 affect journalists? When journalists receive info from confidential sources that was leaked by those sources in violation of the Privacy Act of 1974, those journalists may be subpoenaed to testify in civil actions filed by the individuals about whom the leaked info pertains. The person whose info is leaked in violation of the Privacy Act of 1974 will file a lawsuit under the act and then try to find out who leaked it by subpoenaing the journalists who received it from confidential sources. Criminal History Privacy Laws In accordance with the broad scope of the Omnibus Crime Control and Safe Streets Act of 1968, the federal Law Enforcement Assistance Administration, an agency created by Nixon administration to help local police forces fight crime, sought to develop a national computerized record-keeping system. System established permits any police department in the nation to have access to records of virtually all other police departments. Congressional concern about the misuse of the record system led to limitations on access to the data. Police records have always contained a considerable amount of information that is erroneous, out-of-date, or private. The centralized record-keeping system presents a problem as the "dossier effect." The contrast between these computerized and centrally maintained records immediately accessible across the country and those police records of the past was sharp and immediately evident: Fragmented, original-source records kept by a single police agency for a limited geographical area were not readily accessible because of their bulk and associated indexing problems. Federal policy mandated that states, if they wish to participate in the national record-keeping system, adopt rules that limit the dissemination of some criminal history non-conviction data. The "Code of Federal Regulations" ("Criminal Justice Information Systems") defines non-conviction data as: "Arrest information without disposition if an interval of one year has elapsed from the date of arrest and no active prosecution of the charge is pending, or information disclosing the police have elected not to refer a matter to a prosecutor, or that a prosecutor has elected not to commence criminal proceedings, or that proceedings have been indefinitely postponed, as well as all acquittals and all dismissals." As a result of the state laws, press access to criminal history records kept by the police has been virtually eliminated unless data sought are pertinent to an incident for which a person is currently being processed by the criminal justice system, are conviction records or are original records for entry, such as arrest records, that are maintained chronologically and are accessible only on that basis. Reporters can also obtain information about arrests not resulting in conviction, however, if they are aware of the specific dates of the arrest. It is hard to determine whether these laws have substantially affected the press's ability to report on the criminal justice system. A good police reporter usually can gain access to information they want to see. The ability to achieve that scrutiny is important. Example: it is possible to envision a situation in which a prosecutor is accused of favoring friends or certain ethnic or racial groups when deciding whether to prosecute arrested persons. Without access to arrest records that can be compared with prosecution records, such a charge would be difficult to investigate. People within the criminal justice system could gain access to the needed records, but history indicates they must be prodded before they take action. And of course prodding is the function of the press! State Statutes that limit access to information All states have statutes that limit access to information that would otherwise be available under a freedom-of-information law. Example: Washington has more than 100 different laws that govern access to particular information. Some of these state statutes are aimed at blocking access to trade secrets; others limit access to info submitted to the state in compliance with environmental laws. 2001, direct response to the racetrack death of driver Dale Earnhardt at Daytona 500 and the subsequent request for autopsy photographs by the Orlando Sentinel and other newspapers, Florida legislature passed a bill that makes confidential and exempt from that state's public records act photographs and videotapes of autopsies. The newspapers had sought access to the photographs to determine the reasons for Earnhardt's death and in particular whether a particular safety device might have saved his life. 2002, Florida appellate court upheld constitutionality of that statute and its retroactive application, and the Supreme Court of Florida declined to hear the case in 2003, letting appellate court decision stand. The Penn. Supreme Court ruled in 2009 autopsy reports are official records subject to disclosure under PA's open-records law. The PA high court noted, however, that trial court judges may protect autopsy reports from disclosure based on judicial discretion and necessity under appropriate circumstances, adding "this inherent power provides trial courts with the means to limit public access to autopsy reports (or portions thereof) based on privacy or privilege concerns where warranted" Divorce is another area where some states adopt statutes limiting public access to certain records. Example: 2006, California appellate court in Burkle v. Burkle struck down state statute that allowed a party in a divorce case, upon request to a judge, to have sealed in their entirety any and all court documents referencing in any way the financial assets and liabilities of the parties getting divorced. Though the court acknowledged privacy interests of divorcing parties in financial information (including possibility of identity theft), it nonetheless found "1A provides right of access to court records in divorce proceedings" and held the statute was overbroad and not narrowly tailored to protect privacy interests. In particular, statute mandated a judge to automatically seal in their entirety court pleadings relating to financial information even if they just briefly mentioned the information, rather than providing the judge with discretion to redact only those specific parts of the documents relating to financial information that actually could harm privacy interests. Courts in other states have struck down similar laws - sometimes based on a 1A right of access, sometimes based on state constitutional right of access. Summary All the states and the federal government have laws that specifically exclude certain kinds of info from the public scrutiny. Some of these exclusions were noted in Exemption 3 of FOIA. Today, the right to privacy has been erected as a substantial barrier to access to information held by government agencies. The federal government has adopted a law protecting the privacy of student records (FERPA). Congress passed a federal privacy law, which often conflicts with the provisions of FOIA (Privacy Act of 1974). The federal government has also insisted states pass statutes that control access to criminal history records. Much privacy legislation has been passed by the states themselves, and today the right to privacy is being used frequently to block access to public records.

Closure of Other Hearings To laypeople, the judicial process generally means t...! But a large percentage of the process takes place in h... that aren't t..., h... that often resolve many issues formerly decided at trials! The growth of the wide array of especially p... h... is the result of court decisions in the 1960s that expanded defendants' rights in criminal cases, major changes in the way the criminal justice system works and attempts by members of the judiciary to work more closely with people who staff penal institutions and social service agencies Among the h... are... -E... or su... h... -P... detention h... -Plea h... -Pre-sentence and post-sentence h..., etc. Many of these h... take place long before the t... begins, weeks before a ... is selected! Some focus on information that may be highly p... to the defendant Example: At an e... h..., the court may rule a key piece of evidence, such as a weapon, is i... at the trial because it was improperly seized by the police. The fact the defendant had a weapon is certainly p...; if this fact is p..., some argue, it won't matter the evidence is barred from trial because community members, the ..., will already know a weapon exists! Or the state may believe the p... about certain kinds of evidence may adversely affect the future p... of o... d...! Since 1986, American courts specifically ruled both p... e... h... (such as a hearing to consider motions to su... e...) and v... d... p... are p... o...! These rulings apply to ... courts e...! -Before such h... can be closed, the t... ... must apply the rigid requirements of the Press-Enterprise Test. This presents a h... h... for a proponent of closure -Lower courts have ruled this applies to the content of written jury questionnaires compiled by prospective ... before the o... v... d... begins but only with respect to the questionnaires completed by ... called for o... v... d... Example: -Supreme Court ruled Georgia trial court violated the ... when it excluded the public during a v... d...! The court said trial courts are obligated to take every reasonable measure to accommodate p... at... at c... t... -The court wrote there were circumstances where a judge could close v... d..., but in those cases the judge must articulate the r... along with s... f...! Making a decision based simply on conclusory as... isn't sufficient! Example: -NJ trial judge closed a post-verdict jury v... d... to explore possible juror misconduct in a civil case. The judge said he wanted to talk with jurors about possible inappropriate behavior by one member of the jury. When the order was challenged, the appellate court agreed there was no evidence that such hearings had been t... o... (history-and-logic test) -BUT "Having the p... observe the hearing would certainly discourage perjury and provide the public with evidence that juror actions aren't unchecked" the court said. The hearing was p... o..., and the judge failed to provide r... to support closure, the court ruled. (history-and-logic test) Example: -ME Supreme Judicial Court ruled a generalized concern that juror candor might be reduced if v... d... conducted in p... is insufficient to bar the media or public from the e... of the proceeding! Other rulings on open h... have come from the U.S. Courts of Appeals and state appellate courts. Consequently, these rulings don't apply as b...; they may be confined to a s... f... j... or a s...! It is fair to say though in most situations the following kinds of proceedings are regarded as o... and can be c... only by a strong showing of the "s... p..." of harm to some other c... i... (Press-Enterprise test): a. Pretrial detention h... b. Bail h... c. Plea h... d. V... d... p... e. Sentencing h... f. Attorney disciplinary hearings But there are some kinds of proceedings the courts have said are NOT p... o... and generally remain c... to p... scrutiny! 1. S... J... Trials -6th Circuit ruled the press and public don't enjoy a p... right of access to a j... trial that is a device used by courts to attempt to get parties in a case to s... their dispute before going to a full-blown j... t... -Attorneys present abbreviated a... to ...; no w... called; objections to e...e or other matters discouraged. After hearing the a..., ... issues an informal v... that can be used to s... the case! If plaintiff Jones loses the v... in the s... j... trial, she may be more willing to s... the case without a normal trial! The court said there was no ... ... right of access to such proceedings because such a right was not h... recognized and permitting access might actually work a... the purpose of the summary trial or the s... of the dispute 2. ... ... Proceedings -Are secret and always have been! -Not an issue the press has disputed, but in two instances sensitive ... ... materials have been leaked to the press, to the distress of defense lawyers who argued the release of this material violates the rights of defendants and can taint potential ...! Example: -San Francisco Chronicle published parts of federal ... ... testimony that suggested several MLB players had used steroids -ABC News and the-smoking-gun.com carried substantial excerpts from ... ... proceedings in the Michael Jackson child molestation case Under California law, ... ... transcripts are usually made public b... the start of the t..., but in this case the judge had barred the release of the material because of the intense media coverage of the case No penalties were exacted against the press in these cases, but the mass media walk on very th... legal i... when they publish secret material generated by a ... ... proceeding The ... ... provides little protection on such a case (remember the ... ... also rarely protects journalists who refuse to reveal the names of sources of such ... ... materials) Rules that preserve the secrecy of ... ... proceedings apply equally to proceedings ancillary to ... ... proceedings Tips for Reporters When a Judicial H... is Closed 1. Call the e... immediately to get a l... on the job 2. Make a f... o... to closure 3. Ask the judge to d... the closure until the l... arrives

Closure of Other Hearings To laypeople, the judicial process generally means trials! But a surprisingly large percentage of the process takes place in hearings that are not trials, hearings that often resolve many issues formerly decided at trials! The growth of the wide array of especially pretrial hearings is the result of court decisions in the 1960s that substantially expanded defendants' rights in criminal cases, major changes in the way in which the criminal justice system works and attempts by members of the judiciary to work more closely with people who staff the penal institutions and social service agencies There are evidentiary or suppression hearings, pretrial detention hearings, plea hearings, presentence and postsentence hearings, etc. Many of these hearings take place long before the trial begins, weeks before the jury is even selected! Some focus on information that may be highly prejudicial to the defendant. At an evidentiary hearing, for example, the court may rule a key piece of evidence, such as a weapon, is inadmissible at the trial because it was improperly seized by the police. The fact the defendant had a weapon is certainly prejudicial. If this fact is publicized, some argue, it won't matter the evidence is barred from trial because members of the community, the jurors, will already know a weapon exists! Or the state may believe the publicity about certain kinds of evidence may adversely affect the future prosecution of other defendants Since 1986 American courts have ruled a wide range of judicial proceedings are presumptively open to the press and public! The Supreme Court has specifically ruled both pretrial evidentiary hearings (such as a hearing to consider motions to suppress evidence) and voir dire proceedings are presumptively open!!! These rulings apply to all courts everywhere. Before such hearings can be closed, the trial judge must apply the rigid requirements of the Press-Enterprise test. This presents a high hurdle for a proponent of closure to cross. Lower courts have ruled this applies to the content of written jury questionnaires compiled by prospective jurors before the oral voir dire begins but only with respect to the questionnaires completed by the jurors called for the oral voir dire. Example: 2010, Supreme Court ruled Georgia trial court violated the constitution when it excluded the public during a voir dire. The court said trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. The court wrote there were circumstances where a judge could close VD, but in those cases the judge must articulate the reasons along with specific findings! Making a decision based simply on conclusory assertions as happened in this case isn't sufficient! Example: NJ trial judge closed a post-verdict jury voir dire to explore possible juror misconduct in a civil case. The judge said he wanted to talk with jurors about possible inappropriate behavior by one member of the jury. When the order was challenged, the appellate court agreed there was no evidence that such hearings had been traditionally open. However, "Having the public observe the hearing would certainly discourage perjury and provide the public with evidence that juror actions aren't unchecked" the court said. The hearing was presumptively open, and the judge failed to provide reasons to support closure, the court ruled. Example: 2013, Maine Supreme Judicial Court ruled a generalized concern that juror candor might be reduced if voir dire conducted in public is insufficient to bar the media or public from the entirety of the proceeding Other rulings on open hearings have come from the U.S. Court of Appeals and state appellate courts. Consequently, these rulings don't apply as broadly; they may, in fact, be confined to a single federal jurisdiction or a state! It is fair to say, however, in most situations the following kinds of proceedings are regarded as open and can be closed only by a strong showing of the substantial probability of harm to some other compelling interest: è Pretrial detention hearings è Bail hearings è Plea hearings è Voir dire proceedings è Sentencing hearings è Attorney disciplinary hearings But there are some kinds of proceedings the courts have said are NOT presumptively open and generally remain closed to public scrutiny! Example: 6th Circuit ruled the press and public do not enjoy a presumptive right of access to a summary jury trial , an unusual judicial proceeding sometimes used in civil cases. The summary jury trial is a device used by courts to attempt to get parties in case to settle their dispute before going to a full-blown jury trial. In such a case the attorneys present much-abbreviated arguments to jurors. There are no witnesses called, and objections to evidence or other matters are strongly discouraged. After hearing the arguments, jurors issue an informal verdict that can be used to settle the case Example: If plaintiff Jones loses the verdict in the summary jury trial, she may be more willing to settle the case without a normal trial. The court said there was no 1A right of access to such proceedings because such a right was not historically recognized and permitting access might actually work against the purpose of the summary trial, that is, the settlement of the dispute Grand jury proceedings are secret and always have been. This isn't an issue the press has disputed, but in two instances sensitive grand jury materials have been leaked to the press, much to the distress of defense lawyers, who argue the release of this material violates the rights of defendants and can taint potential jurors! Example: 12/2004, San Francisco Chronicle published parts of federal grand jury testimony that suggested several MLB players had used steroids. The month after, ABC News and Web site "the-smoking-gun.com" carried substantial excerpts from grand jury proceedings in the Michael Jackson child molestation case Under California law, grand jury transcripts are usually made public before the start of the trial, but in this case the judge had barred the release of the material because of the intense media coverage of the case. No penalties were exacted against the press in these cases, but the mass media walk on very thin legal ice when they publish secret material generated by a grand jury proceeding. The 1A provides little protection on such a case (remember the 1A also rarely protects journalists who refuse to reveal the names of sources of such grand jury materials). Rules that preserve the secrecy of grand jury proceedings apply equally to proceedings ancillary (additional, auxiliary) to grand jury proceedings. Tips for Reporters when Judicial Hearing is Closed 1. Call the editor immediately to get a lawyer on the job 2. Make a formal objection to closure 3. Ask the judge to delay the closure until the lawyer arrives

FOIA Exemptions A document, tape or file that has been determined to be an ... ... accessible via FOIA may still be withheld from public inspection if it properly falls within one of ... categories of exempted material -Federal agencies are not ... to withhold documents from disclosure simply because they are included in an exempted category! The law says they ... withhold such material (if they choose to) -... exemptions are fairly specific, but not specific enough to be free from substantial j... in...! How a ... defines a word or phrase in these exemptions can result in significant change in the meaning of the law and can lead to either ... public access, or more likely in recent years, substantially ... public access! Of the 770k requests processed in FY 2020, agencies released records in full (22%), in part (42%). About 5% received a full denial As has been the case for many years, FOIA's ... exemptions (Exemption ...) and Exemption ...(...) were the most cited exemptions used. Over half of the exemptions Exemption ...(...), which protects law enforcement techniques, procedures and guidelines, was third most used Exemptions to Disclosure Under FOIA 1. ... ... matters 2. ... materials 3. Material exempted by ... 4. ... s... 5. W... .../l...-c... p... materials 6. ... p... files *** 7. ... e... records *** 8. ... in... materials 9. G... data Exemption 1: National Security Matters specifically authorized under criteria established by an ... o... to be kept secret in the interest of ... d... or ... p... and in fact properly classified pursuant (in accordance to) to such an ... o... -Deals with a wide range of materials, but primarily information related to national security and ... d..., ... gathering and f... r... -System has a three-tier classification 1. ... - Material, the release of which could reasonably be expected to damage national security (lowest classification) 2. ... - Shield material that if disclosed could be expected to cause serious damage to national security 3. ...-... - Highest level of classification, reserved for material that if revealed could be expected to cause exceptionally grave damage to national security Though government agencies have burden to justify nondisclosure under any FOIA exemption, courts applying Exemption 1 give substantial d... and w... to agency affidavits implicating national security They rule in favor of the government if an agency's affidavit: 1. Describe justifications for nondisclosure in r... s... detail 2. Demonstrate the information withheld logically falls within the claimed ... 3. Are not contradicted by evidence in the ... or by evidence of agency b... f... Example: Federal judge applying this test held Department of Defense was protected under Exemption 1 from disclosing photos of past/present detainees at U.S. facility in Guantanamo Bay, Cuba. Judge accepted government's claim public disclosure of the photos would increase risk of retaliation against detainees and their families + exacerbate detainees' fears of such retaliation, thus reducing likelihood detainees will cooperate in ...-gathering efforts Example: 2nd Circuit ruled reports about the CIA's use "enhanced interrogation techniques" such as waterboarding, could be withheld under Exemption 1, though the use of the techniques was widely known. ACLU submitted a FOIA request seeking information about the killings of three U.S. citizens in Yemen. This case was appealed to the 2nd Circuit three times. The FOIA request sought disclosure of the legal memorandum written by the DOJ Office of Legal Counsel that provided justifications for the targeted killing as well as records describing the factual basis for the killings of all three Americans. The government was forced to describe targeted-killing program documents in its possession, but many other documents were not released under Exemption 1 ... responses are often thorns in the side of FOIA requesters seeking national security information -An agency issues a ... response to a request when it refuses to ... or ... the existence of records on the grounds that even to acknowledge the records' ... would cause harm underlying a FOIA exemption -Originated in 1976 case before the U.S. Court of Appeals for D.C., in response to a FOIA request the CIA refused to ... or ... its ties to a submarine retrieval ship known as the ... Explorer -Since this case, the ... rationale has been invoked by agencies outside such national security context too Example: CIA successfully used a ... response in The New York Times v. Central Intelligence Agency President Trump tweeted a response to an article the Washington Post published about a covert CIA training program in Syria. In the tweet, Trump said the article "fabricated facts on my ending payments to Syrian rebels fighting [the Syrian president]. After seeing the tweet along with similar comments from president in a Wall Street Journal article, NYT filed FOIA request seeking acknowledgement from CIA it was aware of the existence of records regarding a covert program of arming and training rebel forces in Syria CIA replied with a ... response, stating it could neither ... nor ... the ... or n... of such records. The Times argued that Trump's statements officially acknowledged the existence of the program, which should prevent a ... response. But the 2nd Circuit disagreed. The court said Trump's statements were ambiguous and didn't mention the ...

FOIA Exemptions A document, tape, or file that has been determined to be an agency record accessible via FOIA may still be withheld from public inspection if it properly falls into one of 9 categories of exempted material. Federal agencies are not required to withhold documents from disclosure simply because they are included in an exempted category. The law basically says they may withhold such material. Nine exemptions are fairly specific, yet not specific enough to be free from substantial judicial interpretation. How a judge defines a word or phrase in these exemptions can result in a significant change in the meaning of the law and can lead to either expanded public access, or more likely in recent years, substantially REDUCED public access. Over 770k FOIA requests were processed in FY 2020. Agencies released records in full about 22% of the time and released records in part 42% of the time. About 5% of requests resulted in a full denial. As has been the case for many years, the FOIA's privacy exemptions, Exemption 6 and 7(C), were the most cited FOIA exemptions used in FY 2020. Over half of the exemptions cited by agencies were those two exemptions. Exemption 7(E), which protects law enforcement techniques, procedures and guidelines, was the third most used exemption. Exemptions to Disclosure Under FOIA 1. National security matters 2. Housekeeping materials 3. Material exempted by statute 4. Trade secrets 5. Working papers/lawyer-client privileged materials 6. Personal privacy files *** 7. Law enforcement records *** 8. Financial institution materials 9. Geological data 1. National Security Exemption 1: Matters specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and in fact properly classified pursuant (in accordance to) to such an executive order. Exemption deals with a wide range of materials, but primarily with information related to national security and national defense, intelligence gathering and foreign relations. The system has a three-tier classification: Material, the release of which could reasonably be expected to damage national security, is classified as (1) "confidential" the lowest level of classification. The (2) "secret" classification is used to shield material that if disclosed could be expected to cause SERIOUS damage to national security. (3) "Top-secret" the highest level of classification, is reserved for material that if revealed could be expected to cause EXCEPTIONALLY GRAVE damage to national security Though government agencies have burden to justify nondisclosure under any FOIA exemption, courts applying Exemption 1 give substantial deference (respect) and weight to agency affidavits implicating national security. In fact, they rule in favor of the government on Exemption 1 if an agency's affidavit, (1) describe justifications for nondisclosure in reasonably specific detail; (2) demonstrate the info withheld logically falls within the claimed exemption; (3) are not contradicted by evidence in the record or by evidence of agency bad faith. Applying this test in 2006, federal judge held the Department of Defense was protected under Exemption 1 from disclosing photographs of past and present detainees at the U.S. facility at Guantanamo Bay, Cuba. The judge accepted the government's claim that public disclosure of the photos "would both increase the risk of retaliation (revenge) against the detainees and their families and exacerbate the detainees' fears of reprisal (retaliation), thus reducing the likelihood that detainees would cooperate in intelligence-gathering efforts" 2012, 2nd Circuit ruled reports about the CIA's use "enhanced interrogation techniques" such as waterboarding, could be withheld under Exemption 1, even though the use of the techniques was widely known. In 2011, ACLU submitted a FOIA request seeking information about the killings of three U.S. citizens in Yemen: al-Aulaqi, his 16-year-old son, and Samir Khan. Over five years of litigation, this case was appealed to the 2nd Circuit three times. The FOIA request sought disclosure of the legal memorandum written by the Department of Justice Office of Legal Counsel that provided justifications for the targeted killing of al-Aulaqi, as well as records describing the factual basis for the killings of all three Americans. The government was forced to describe targeted-killing program documents in its possession, but many other documents were not released under Exemption 1. In 2016, 2nd Circuit ruled no other documents must be disclosed. What have become known as Glomar responses are often thorns in the side of FOIA requesters seeking national security information. An agency issues a Glomar response to a FOIA request when it refuses to confirm or deny the existence of records on the grounds that even to acknowledge the records' existence would cause the harm underlying a FOIA exception. The Glomar doctrine originated in a 1976 case before the U.S. Court of Appeals for D.C. when, in response to a FOIA request, the CIA refused to confirm or deny its ties to a submarine retrieval ship called the Glomar Explorer. The CIA's refusal was based on the ground "in the interest of national security, involvement by the U.S. government in the activities which are the subject matter of the plaintiff's request could neither be confirmed nor denied" Since that case, Glomar rationale has been invoked by agencies outside of the national security context too, leading FOIA litigants to say the suffer from "Glomar fatigue" The CIA successfully used a Glomar response in 2020 case, The New York Times v. Central Intelligence Agency. 2017, President Trump tweeted a response to an article the Washington Post published about a covert CIA training program in Syria. In the tweet, Trump said the article "fabricated facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad" (Syrian president). After seeing the tweet along with similar comments from president in a Wall Street Journal article, New York Times filed FOIA request, seeking acknowledgement from CIA it was aware of the existence of records regarding a covert program of arming and training rebel forces in Syria. The CIA, though, replied with a Glomar response, stating it could neither confirm nor deny the existence or nonexistence of such records. The Times argued that Trump's statements officially acknowledged the existence of the program, which should prevent a Glomar response. But the 2nd Circuit disagreed. The court said Trump's statements were ambiguous and didn't mention the CIA (importantly). "President never specified that there was any program - let alone one led by the CIA - designed to arm and train Syrian rebels."

The lifeblood of journalism is information. It isn't uncommon for people outside the news-gathering business to want the information gathered by journalists. Sometimes they seek copies of what has already appeared in print/over the airwaves but sometimes they want more (information that hasn't been ...; photos or videos that haven't been ...; the ... of ... who provided information to the journalists). Judges, grand juries and even legislative committees all have the power to issue ... to try to force reporters to ... this information! Anyone who refuses to submit to a c... o... can be punished with a citation for c... of c..., a swift judicial ruling in which the target can find selves in ... in a matter of hours! This occurred several times in recent years when journalists went to ... for refusing to reveal either their c... ... or their u... ....! Journalists, Jail and Confidential Sources Some harsh occupational hazards... 1. If you refuse to reveal, after having been ... to do so, the ... of a ... ... to a ... j... investigating a potential criminal law violation, you can be held in c... of ..., ordered to go to ... and forced to pay (along with your ...) an often steep monetary fine! Example: Former NYT reporter spent 85 days in a VA detention facility in 2005 after she refused to reveal the identity of the ... ... who leaked to her the name of a covert CIA operative 2. If you refuse to turn over your n..., ... or ... after having been ordered to do so by a judge in a c... or ... l... p..., then you might be held in ..., ordered to go to ... and forced to pay (along with your ...) an often steep monetary fine! Example: Freelance blogger spent record-setting 226 days in jail in 2006-7 after he refused, in the face of a ..., to turn over unaired ... he made of a demonstration in San Francisco 3. If you breach a p... of ... given to a source by revealing and disclosing that source's ... in court, to a grand jury or simply by publishing it in the media, then you can be sued by that source in a ... law proceeding for ... d... on a theory known as P... E... Journalists who refuse either to comply with ... and c... o... to reveal the ... of confidential ... or to turn over in court their n..., ... and ... are forced to turn for possible protection either to legislatively created ... laws or to judicially adopted ... A... (and sometimes ...-law) privileges to try and ward off contempt orders, jail sentences and monetary fines! However, the mere existence of a ... law in your state or the recognition of a court-created ... A... privilege doesn't guarantee you will get off the legal hook! 41 states and D.C. have adopted ... laws, with the scope varying significantly on a. ... is protected b. ... is protected c. ... material is protected The U.S. Supreme Court has held there is NO ... ... privilege for a journalist to refuse to testify before a ... ... proceeding (Branzburg v. Hayes) In ... and ... proceedings (however), lower federal appellate courts and some states have recognized ... ...-based privileges but these judicially created privileges are not ... and may be overcome! Why are journalists subject to subpoenas, requests for information and court orders? Several reasons: 1. Most journalists are efficient in... g...! Some ... they g... is not included in stories or broadcasts they prepare. Sometimes the source of a story doesn't want to be named and asks reporter not to reveal their identity. Though journalists generally identify their sources when possible, ... sourcing can be a necessary feature of ... journalism! Example: Watergate source known only as Deep Throat until he finally came forward decades later to reveal his identity as Felt. The most famous confidential source in modern American journalism history 2. Reporters are not only efficient g..., they are excellent r... k... Unreported material is often r... in notebooks and computer memories, or saved on video and audio files. For some people this undisclosed information is important/vital. Law enforcement officials frequently want to know what a criminal suspect told a journalist in an interview (only which parts were published/broadcast). Or ... plaintiffs often need to know the identity of the sources used by reporters in preparation of a story to prove the story was untrue, fabricated, or published with ... ... Video recordings of a violent demonstration are often useful to police who seek to identify those who incited the violence or committed criminal acts Reporters are often asked to reveal info they have g... but chosen not to publish/broadcast. Most of the time journalists ... to such requests, but at times they ...! When this happens, those seeking the info often get a c... o... or a ... to force the journalist to r... the ... of the news ... or to disclose the confidential ... U.S. Press Freedom Tracker - at least 37 journalists or news organizations received ... in 2020 Government agents may also get a ... to search a newsroom or a reporter's home to find the info they want In our society the press is supposed to represent a n... entity as it gathers and publishes news/info. When the government or anyone else in... into the newsroom or the reporter's notebook, it compromises this n...! -A news source who normally trusts journalists may choose not to cooperate with a reporter if government agents can learn the source's name by threatening the reporter with a c... o... -TV news crews will hardly be welcome at protest rallies if the demonstrators know the government will use the film to identify + prosecute the protestors The effectiveness of the reporter as an ... g... may be seriously ... if government agents or civil and criminal litigants can force journalists to reveal information they choose not to disclose! Society may also suffer because the ... of ... to the public may be reduced! News and News Sources News sources come in all shapes and sizes. Occasionally their willingness to cooperate with a reporter depends on the a... from the journalist their identity will not be ...! Why would a news source wish to remain ...? -Often the source of a story about criminal activities has p... in ... ... and has no desire to publicize the fact! -Frequently the source of a story about government mismanagement or dishonesty is an ... of that agency, and revelation of their identity as a whistle-blower could result in the ... of the ... for informing the press of the errors made by their superiors -Some people simply don't want to get involved in all the hassle that frequently results when an explosive story is published; by remaining ... they can remain out of the l... Journalists have always used ... sources and obtained information that government officials sought to u... -The earliest reported case of a journalist's r... to d... his sources of information took place in 1848 when a reporter for the New York Herald r... to reveal to the U.S. Senate the name of the person who had given him a secret copy of the treaty the U.S. was negotiating to end the Mexican-American War. He was held in c... of the Senate and ...! A U.S. Court of Appeals ... the journalist's petition for release But the number of requests to journalists to reveal the ... of ... or share confidential ... with authorities escalated at the end of the 19... and into the 19...! The nation went through period of social upheaval, and the press played a significant role in documenting the confrontations between ... and ...; between w... p... and p...; and between the mainstream ... and the nascent ...! The press was often privy to information government officials wanted. The confidential relationship between a journalist and a source often sparks the interest of authorities who are seeking to discover who l... c... ... to the press! A journalist served with a subpoena has a few options... a. The reporter or news organization can c... with those who seek the info and r... what it is they know BUT this c... could damage the ...-... relationship or threaten the image of in... fostered by most news media! b. Journalist can seek to have the subpoena w... or attack the order in ... and hope to have it q...! BUT going to ... can be expensive and time-consuming c. If in the end the journalist refuses to c..., they will likely be held in ... of the ...; a f... and a j... sentence will usually follow The choice for a journalist isn't an easy one! But the choice is difficult for society too! The interests involved are basic to our system of government and political values. 1. On one hand, it is clearly the obligation of every citizen to c... with government and t... before the proper authorities This concept is so well-established that by the early 18th it became a maxim (Wigmore - "The public has a right to everyman's e...") -The ... ... to the U.S. Constitution guarantees the right to have w... and to c... them to t... in our behalf! Surely this right is a valuable one, both to society and individual seeking to prove their innocence of charges of wrongdoing "It is clearly recognized giving t... and a... upon court or grand jury in order to t... are public duties which everyone within the jurisdiction of the government is bound to perform upon being properly summoned. The p... s... involved is part of a necessary contribution to the welfare of the p..." (Supreme Court on the duties and rights of w..., 1919) 2. But society ... from information provided by the news media When a reporter is forced to break a promise of c... or is used as an arm of law enforcement investigation, it harms this ... of ...! As a result, people who know things (often important things) simply will not give this information to journalists for fear of being exposed if the reporter is s... for ...! The fragile ...-... r... may be damaged! Tips for reporters on promising confidentiality... 1. Do not r... promise confidentiality as a s... in... technique! 2. Avoid giving an a... p... of confidentiality! Try to persuade the source to agree you may reveal their name if you are ... 3. Don't rely e... on information from a confidential source! Get corroboration from a n... source or documents 4. Consider whether others (police, attorneys) will want to know the ... of the ... before publishing or broadcasting the material! Will you be the only source of this information, or can they get it elsewhere? 5. Consider whether you can use the info without d... that it was o... from a confidential source! Reporters should always consult their s... or e... before promising anonymity to a source; if a legal action results, the journalist will have to rely on the n... o... to assist in defending the action! As more reporters were called on to cooperate with legal authorities during the last 50 years, c... and ... l... were asked to fashion protection for both the l... ... and the ...! -What was needed were rules that required the reporter to share valuable info with parties that needed it, but ONLY in those ... circumstances when s... h... might result without this cooperation These rules are called the ...'s ... ...'s ... is not a novelty in the law! Variation of ... given to doctors, lawyers, members of the clergy The ...'s ... that emerged in the last 50 years is hardly a n..., n... legal proposition: a. The s... of the ... varies from j... to j...! In some places its genesis is in the ... or ... c...; in other places it flows from ... l... or ... s...! b. The s... of the ... also varies from j... to j...! Example: A reporter in MI may be legally immune from a certain kind of subpoena, whereas may not enjoy the same immunity in OH To be a safe journalist, know the specific law in your state! Example: Colorado theater shooting case (contempt battle over leaked information) -Fox News reporter faced possible contempt charges, including monetary fines and up to six months in jail! She refused to reveal to the judge the ... of the ... who described to her the contents of a notebook the defendant mailed to a psychologist before allegedly killing 12 people in movie theater -Two days before the story was published, the judge issued a g... o... limiting p... p... in this case - the g... o... specifically instructed parties against the defendant and law enforcement officials refrain from disseminating to the media information that would be substantially likely to pr... the defendant's ... ... right to a f... t... by an im... j... -Reporter identified sources as two unnamed law enforcement officials. Certainly the type of out-of-court information that could p... potential j... against the defendant (quote from source) Colorado is one of ... states that have a ... law: but it only provides a q.../l... p... for a journalist not to reveal their sources. To overcome the p... (and force journalist to reveal info) a person (in this case, the defendant) must prove three things: 1. The info sought is directly relevant to a substantial issue involved in the case 2. The info sought cannot reasonably be obtained from a source other than the journalist 3. A strong interest of the party seeking to subpoena the journalist outweighs the journalist's interests under the 1A. Reporter works in NYC, asserted that NY's ... law would protect her from revealing confidential sources, even if CO's ... law would not -NY's ... law is much stronger -NY's highest appellate court ruled for the reporter and found she was protected by NY's ... law and couldn't be compelled by subpoena to testify in CO

Chapter 10: Protection of News Sources/Contempt Power The lifeblood of journalism is information. Each day reporters gather information. It isn't uncommon for people outside the news-gathering business to want the info gathered by journalists. Sometimes they merely seek copies of what has already appeared in print or over the airwaves. Sometimes they want more: information that hasn't been published; photos or videos that haven't been broadcast; the names of people who provided information to the journalists. Judges, grand juries and even legislative committees all have the power to issue subpoenas to try to force reporters to reveal this information. How much protection does the law provide to reporters who refuse to cooperate when they are presented with subpoenas? How do the actions of the journalist ultimately affect what we all read, see and hear? Anyone who refuses to submit to a court order can be punished with a citation for contempt of court, a swift judicial ruling in which the target can find themselves in jail in a matter of hours! This occurred several times in recent years when journalists went to jail for refusing to reveal either their confidential sources or their unpublished information. Journalists, Jail, and Confidential Sources Some harsh occupational hazards of which aspiring journalists must be aware: 1. If you refuse to reveal, after having been subpoenaed to do so, the name of a confidential source to a grand jury investing a potential criminal law violation, then you can be held in contempt of court, ordered to go to jail and forced to pay (along with your employer) an often steep monetary fee! Former NYT reporter Miller spent 85 days in a VA detention facility in 2005 after she refused to reveal the identity of the confidential source who leaked to her the name of Valeria Plame as a covert CIA operative. 2. If you refuse to turn over your notes, photographs or videos after having been ordered to do so by a judge in a criminal or civil law proceeding, then you might be held in contempt, ordered to go to jail and forced to pay (along with your employer) an often steep monetary fine. Freelance blogger Josh Wolf spent record-setting 226 days in jail in 2006 and 2007 after he refused, in the face of a subpoena, to turn over unaired video he made of a demonstration in San Francisco that damaged a police car. 3. If you breach a promise of confidentiality given to a source by revealing and disclosing that source's name in court, to a grand jury or simply by publishing it in the media, then you can be sued by that source in a civil law proceeding for monetary damages on a theory known as promissory estoppel. Journalists who refuse either to comply with subpoenas and court orders to reveal the identity of confidential sources or to turn over in court their notes, photographs and videos are forced to turn for possible protection either to legislatively created shield laws or to judicially adopted First Amendment (and sometimes common-law) privileges to try to ward off contempt orders, jail sentences and monetary fines! However, the mere existence of a shield law in your state or the recognition of a court-created 1A privilege doesn't guarantee you will get off the legal hook! 41 states and D.C. have adopted shield laws by November 2021, with the scope of those laws varying significantly in terms of (1) WHO is protected, (2) WHAT is protected, and (3) WHEN material is protected. The U.S. Supreme Court has held there is no 1A privilege for a journalist to refuse to testify before a grand jury proceeding. In civil and criminal proceedings (as compared to grand jury proceedings), lower federal appellate courts and some states have recognized 1A-based privileges, but these judicially created privileges aren't absolute and may be overcome! Why are journalists subject to subpoenas, requests for information and court orders? There are several answers to that question! 1. Most journalists are efficient information gatherers. Some info they gather isn't included in the stories or broadcasts they prepare. Sometimes the source of a story doesn't want to be named and asks the reporter to promise not to reveal their identity. Though journalists generally identify their sources whenever possible, anonymous sourcing can be a necessary feature of investigative journalism. Example: Obvious, Watergate source known only as Deep Throat until he finally came forward decades later in 2005 to reveal his identity as W. Mark Felt. Felt died in 2008 as the most famous confidential source in modern American journalism history. 2. But reporters are not only efficient gatherers, they are excellent record keepers. Unreported material is often retained in notebooks and computer memories, or saved on video and audio files. For some people this undisclosed info is important, even vital. Law enforcement officials frequently want to know what a criminal suspect told a journalist during an interview - only parts of which have been published or broadcast. Libel plaintiffs often need to know the identity of the sources used by reporters in preparation of a story in order to prove the story was untrue, fabricated, or published with actual malice. Video recordings of a violent demonstration are often useful to police who seek to identify those who incited the violence or committed criminal acts. Reporters are often asked to reveal info they have gathered but chosen not publish or broadcast. Most of the time journalists comply with such requests. At times, however, they refuse. When this happens, those seeking the info often get a court order or subpoena to force the journalist to reveal the name of the news source or to disclose the confidential info. U.S. Press Freedom Tracker (documenting press freedom violations around the country) reported at least 37 journalists or news organizations received subpoenas in 2020. Government agents may also get a warrant to search a newsroom or a reporter's home to find the info they want. In our society the press is supposed to represent a neutral entity as it gathers and publishes news and information. When the government or anyone else intrudes into the newsroom or the reporter's notebook, it compromises this neutrality. A news source who normally trusts journalists may choose not to cooperate with a reporter if government agents can learn the source's name by threatening the reporter with a court order. TV news crews will hardly be welcome at protest rallies if the demonstrators know the government will use the film to identify and prosecute the protestors. The effectiveness of the reporter as an information gatherer may be seriously compromised if government agents or civil and criminal litigants can force journalists to reveal info they choose not to disclose. Society also may ultimately suffer because the flow of info to the public may be reduced. News and News Sources If news and info is the lifeblood of the press, then news sources are one of the important wells from which that lifeblood springs. Journalists are often no better than the sources they cultivate. News sources come in all shapes and sizes. Occasionally their willingness to cooperate with a reporter depends on assurances from the journalist their identity will not be revealed. Why would a new source wish to remain anonymous? Many reasons! Often the source of a story about criminal activities has participated in criminal activities and has no desire to publicize the fact. Frequently the source of a story about government mismanagement or dishonesty is an employee of that government agency, and revelation of their identity as a whistle-blower could result in the loss of the job for informing the press of the errors made by the employee's superiors. Some people simply don't want to get involved in all the hassle that frequently results when an explosive story is published; by remaining anonymous they can remain out of the limelight. Journalists have always used confidential sources and obtained info that government officials sought to uncover. The earliest reported case of a journalist's refusal to disclose his sources of information took place in 1848 when a reporter for the New York Herald refused to the reveal to the U.S. Senate the name of the person who had given him a secret copy of the treaty the U.S. was negotiating to end the Mexican-American War. He was held in contempt of the Senate and jailed. A U.S. Court of Appeals denied the journalist's petition for release. The number of requests to journalists to reveal the names of sources or share confidential info with authorities escalated at the end of the 1960s and into the 1970s. The nation went through period of great social upheaval, and the press played a significant role in documenting the confrontations between blacks and whites, between war protestors and police and between the mainstream culture and the nascent counterculture. The press was often privy to info that government officials wanted. The confidential relationship between a journalist and a news source often sparks the interest of authorities who are seeking to discover who leaked confidential info to the press. A journalist served with a subpoena has few options. The reporter or news organization can cooperate with those who seek the info and reveal what it is they want to know. This cooperation could damage the reporter-source relationship or threaten the image of independence fostered by most news media. The journalist can seek to have the subpoena withdrawn or attack the order in court and hope to have it quashed. Going to court can be expensive and is time-consuming. If in the end the journalist refuses to cooperate, they will likely be held in contempt of court. A fine and a jail sentence will usually follow. So the choice for the journalist isn't an easy one! But the choice for society is difficult as well! The interests that are involved in this dilemma are basic to our system of government and political values. On one hand, it is clearly the obligation of every citizen to cooperate with the government and testify before the proper authorities. Concept was so well established by the early 18th century it had become a maxim. John Henry Wigmore, classic treatise on evidence, cites the concept: The public has a right to everyman's evidence. The Sixth Amendment to the U.S. Constitution guarantees the right to have witnesses and to compel them to testify in our behalf. Surely this right is a valuable one, both to society and to the individual seeking to prove their innocence of charges of wrongdoing. The Supreme Court in 1919 wrote on the duties and rights of witnesses: "It is clearly recognized the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which everyone within the jurisdiction of the government is bound to perform upon being properly summoned. The personal sacrifice involved is part of a necessary contribution of the individual to the welfare of the public." But society benefits from information provided by the news media. When a reporter is forced to break a promise of confidentiality or is used as an arm of law enforcement investigators, it harms this flow of info. People who know things, often important things, simply won't give this info to journalists for fear of being exposed if the reporter is squeezed for info. The fragile reporter-source relationship may be damaged. Box: Tips for reporters on promising confidentiality Suggestions given by newspaper attorney Utevsky to reporters and writers. è Do not routinely promise confidentiality as a standard interview technique! è Avoid giving an absolute promise of confidentiality. Try to persuade the source to agree that you may reveal their name if you are subpoenaed. è Don't rely exclusively on information from a confidential source. Get corroboration from a nonconfidential source or documents è Consider whether others (police, attorneys, etc.) will want to know the identity of the source before publishing or broadcasting the material. Will you be the only source of this information, or can they get it elsewhere? è Consider whether you can use the info without disclosing that it was obtained from a confidential source. Reporters should always consult with a supervisor or editor before promising anonymity to a source; if a legal action results, the journalist will have to rely on the news outlet to assist in defending the action. As more and more reporters were called on to cooperate with legal authorities during the last 50 or so years, courts and state legislatures were asked to fashion protection for both the legal system and the press. What was needed were rules that required the reporter to share valuable information with the parties that needed it, but only in those rare circumstances when severe harm might result without this cooperation. These rules are called the reporter's privilege. Such a privilege isn't a novelty in the law! A variation of this privilege is given to doctors, lawyers and members of the clergy. The reporter's privilege that emerged in the past five decades is hardly a nice, neat, legal proposition. The source of the privilege varies from jurisdiction to jurisdiction. In some places its genesis is in the U.S. or state constitution; in other places it flows from common law or state statute. The scope of this privilege also varies from jurisdiction to jurisdiction. A reporter in MI may be legally immune from a certain kind of subpoena, whereas their counterpart in OH may not enjoy the same immunity. A general outline of the broad provisions of this privilege, focusing especially on the rights that spring from the 1A. To be safe a journalist should know the specific law in their state (the rules of each state can be found at the Reporters Committee for Freedom of the Press "Reporter's Privilege Compendium" - a complete compendium of information on the reporter's privilege - the right not to be compelled to testify or disclose sources and information in court - in each state and federal circuit.") Box: The CO theater shooting case: the contempt battle over leaked information in the prosecution of James Holmes 2013, Fox News reporter Jana Winter faced possible contempt charges, including monetary fines and up to six months in jail. Because Winter refused to reveal to a judge the identity of the sources who described her the contents of a notebook Holmes mailed to a psychologist before allegedly killing 12 people in an Aurora, CO movie theater in July 2012. Two days before Winter's story was published, the judge had issued a gag order limiting pretrial publicity in this case. The gag order specifically instructed both the parties to the case against Holmes and law enforcement officials to refrain from disseminating to the media info that would be substantially likely to prejudice Holmes' Six Amendment right to a fair trial by an impartial jury. In her July 25, 2012 story describing the contents of Holmes' notebook, Winter identified her sources as two unnamed law enforcement officials. Winter's story quoted one source as stating there was a "notebook full of details about how he was going to kill people. There were drawings of what he was going to do in it - drawings and illustrations of the massacre." Certainly it was the type of out-of-court information that could prejudice potential jurors against Holmes! CO is one of the 41 states as of November 2021 to have a shield law. CO's shield law, however, creates only a qualified or limited privilege for a journalist not to reveal their sources. To overcome the privilege and force a journalist to reveal information, a person (in this case, James Holmes) must prove three things: 1. The information sought is directly relevant to a substantial issue involved in the case 2. The information sought cannot reasonably be obtained from a source other than the journalist 3. A strong interest of the party seeking to subpoena the journalist outweighs the journalist's interests under the 1A. Winter, who works in NYC, also asserted that NY's shield law would protect her from revealing her confidential sources, even if CO's shield law would not. NY's shield law is much stronger than CO's shield law. 12/2013, NY's highest appellate court ruled for Winter and found she was protected by NY's shield law and couldn't be compelled by subpoena to testify in CO. The court reasoned "as a New York reporter, Winter was aware of and entitled to rely on the absolute protection embodied in our shield law when she made the promises of confidentiality that she now seeks to honor." Thus concluded allowing a NY court to issue a subpoena compelling a NY journalist like Winter to appear as a witness in another state to give testimony was inconsistent with NY's "public policy of the highest order" safeguarding journalists sources. 2015, jury found Holmes guilty of first-degree murder of all 12 victims

Contact With Jurors It is common following the c... of a lawsuit for attorneys to talk with jurors to discover what factors led to the verdict the jurors reached; in highly publicized trials, reporters also want to talk with jurors It is not uncommon for t... T... p... and t... n... to offer jurors large sums of ... if they will talk o... the r... about their deliberations. A judge may certainly bar a juror from speaking with reporters w... the trial is in p... or b... the jury deliberations are c...; BUT once a jury has c... its work and is d... by the judge, the law becomes murky! Judges raise several concerns relating to the jury 1. Protect the jurors from h... by the press Both verbal and sometimes physical shoving to get an interview can get intense! It is difficult enough finding people who are willing to serve on a jury. The prospect of facing h... by the press after the trial doesn't help the situation Example While deliberations were ongoing in the high-profile trial of Manafort, former chair of Trump presidential campaign charged with bank fraud, a coalition of media organizations moved for access to the names of jurors. In United States v. Manafort, however, Judge denied the motion, citing concern over jurors' "p... and s..." After a guilty verdict was returned, however, Judge Ellis told jurors they were f... to contact the press if they w... to do so 2. Protecting the s... of the d... There are as many as 12 people on a jury. If one member speaks with reporters, it often reveals the a... and c... of o... m... of the panel! 3. There are cases where s... trials of o... defendants may involve the s... c..., and juror comments about their deliberations could have an impact on these f... hearings And there is always the potential of a r... following an appeal by the defendant who was found ... by the jurors! There are several means a judge can use to limit communications between d... jurors and the press! a. Sometimes a court will simply set r... about h... and w... the press may c... jurors Following a trial at a federal court in MA, the judge d... press access to the names and addresses of jurors for one day to permit jurors to recover from the stress of the trial and think about what they would say if contacted by the media The court said there was a s... p... i... in the case, involved charges of bribery against former speaker of the MA House, and access to jurors' identities was a... b. Some courts have tried to limit access to the n..., a..., p... ..., and other information that could be used to i... the jurors - jurors i... only by a number throughout the trial [a... j...] -The use of a... j... is rare, but in recent years have been used (Unabomber [1996], trials of both OKC federal building defendants, trial of government official North, World Trade Center bombings) -A coalition of media organizations moved for access to the names of the jurors who convicted Cosby of aggravated sexual assault -The court recognized there was a c... r... of a.. to the names of jurors and that countervailing interests of privacy and security didn't o... the presumption of a...! -The court refused to i... the jurors for three weeks Sometimes judges have issued restrictive orders barring the news media from questioning jurors about their deliberations. But as a general rule, an order barring media access to jurors for an ... d... is u..., although there have been e... Most ... courts have their own rules regarding media access to jurors, and they ...! ... judges are guided The Handbook for Jurors by U.S. Judicial Conference. Handbook says it should be up to each ... to decide whether they talk to press following trial Some ... courts have not permitted ... judges to ban such interviews! Example -9th Circuit struck down a ...-court order that prohibited anyone from interviewing jurors after a trial. The order was issued by the ... court to minimize h... of jurors, but the Court of Appeals ruled not all jurors might regard media interviews as h... -The KY Supreme Court o... a ... court's order forbidding anyone to initiate contact with a juror even after the trial is completed. The order was needed, the ... judge said, to ensure jurors' p... s... and p... The state high court said the order was too ... If a former juror doesn't want to talk with a reporter, they should r... the interview. If the reporter persists, the former juror can complain to authorities about h... or i... They can even institute a ... s... against the reporter But the court order barring anyone from contacting the former jurors after the trial went far beyond the court's j..., which ended when the t... ended! Butterworth v. Smith (9-0) (1990) [Case name not in book, no need to memorize] The U.S. Supreme Court ruled a Florida statute prohibiting witnesses who testified before a ... ... from revealing what they had said, even after the ... ...'s term had expired, was ...! -Proceedings before ... ... are ultra-secret. Nothing but the t... b... (or in...) issued by a ... ... is part of the public record -A reporter was working on a story when he uncovered information the prosecutor believed the ... ... should hear. The reporter was subpoenaed and testified before the ... ... After he had given his testimony, he sought to write a news story about his investigation and experiences before the ... ... -But the statute blocked his effort, he sued in U.S. District Court to have the law declared to be u.. -Chief Justice Rehnquist wrote traditionally courts have taken very seriously the need for s... in ... ... p... -BUT "We have recognized the invocation of ... ... interests is not some talisman that dissolved all c... p..." In this case, the chief justice said, the situation involved a reporter's right to divulge information of which he was in possession b... he testified before the ... ..., not information he had gained as a r... of his participation in the ... ... p... Citing Smith v. Daily Mail Publishing Co., Rehnquist said the state could not punish a journalist for publishing information that they had l... o...! While important interests were at stake in maintaining a veil around the activities of a ... ..., these interests in this case were insufficient to o... the ... ... interests! Restrictive orders that bar the press from publishing information about a criminal case have s... to be a m... p... for journalists; orders that limit what trial participants can say remain a n... and probably do not serve the judicial system as well as many observers might imagine -R... tend to thrive in an atmosphere in which the release of accurate information is s...! -It would be better perhaps to provide journalists determined to publish something about a case with a... and t... statements than push them to report what is ground out by a r... mill! Remember Sheppard v. Maxwell - a trial judge is responsible for c... the p... in a case (how restrictive or gag orders came to be) Nebraska Press Association v. Stuart - the press may not be prohibited from publishing (confidential) info it has l... o... about a c... case unless conditions are met 1. I... and p... p... about the case is certain 2. No other r... a... is likely to m... the effects of the p... p... 3. The restrictive order will p... p... material from reaching the ...

Contact with Jurors It is common following the completion of a lawsuit for attorneys to talk with jurors to discover what factors led to the verdict the jurors reached! Today in highly publicized trials, reporters also want to talk with the jurors. It is not uncommon today for tabloid TV programs and tabloid newspapers to offer jurors large sums of money if they will walk on the record about their deliberations. A judge can certainly bar a juror from speaking with reporters while the trial is in progress or before the jury deliberations are completed. But once a jury has completed its work and is dismissed by the judge, the law becomes considerably murkier! Judges raise several concerns relating to the jury: 1. Protect the jurors from harassment by the press. Both the verbal and sometimes physical pushing and shoving to get an interview can sometimes get intense. It is difficult enough these days to find people willing to serve on a jury. The prospect of facing harassment by the press after the trial doesn't help this situation. Example: While deliberations were ongoing in the high-profile trial of Manafort, the former chair of the Trump presidential campaign charged with bank fraud and other federal crimes, a coalition of media organizations moved for access to the names of jurors. In United States v. Manafort, however, Judge Ellis denied the motion, citing concern over jurors' "peace and safety" After a guilty verdict was returned, however, Judge Ellis told jurors they were free to contact the press if they wished to do so 2. Protecting the sanctity of the deliberations. There are as many as 12 people on a jury. If one member speaks with reporters, it often reveals the actions and comments of other members of the panel 3. There are cases where subsequent trials of other defendants may involve the same crime, and juror comments about their deliberations could have an impact on these forthcoming hearings. And there is always the potential of a retrial following an appeal by the defendant who was found guilty by the jurors! There are several means a judge can use to limit communication between dismissed jurors and the press! Sometimes a court will simply set rules about how and when the press may contact jurors. Following a trial at a federal court in Mass., the judge delayed press access to the names and addresses of jurors for one day to permit jurors to recover from the stress of the trial and think about what, if anything, they would say if contacted by the media. The court said there was a strong public interest in the case, since it involved charges of bribery against the former speaker of the MA House of Representatives, and access to jurors' identities was appropriate Some courts have tried to limit access to the names, addresses, phone numbers and other information that could be used to identify the jurors! The jurors are identified only by number throughout the trial. The use of these so-called anonymous juries is rare, but in recent years they have been used in the trial of the so-called Unabomber in 1996, and in the trials of both Oklahoma City federal building defendants, the trial of former government official North and the World Trade Center bombers. In 04/2018, a coalition of media organizations moved for access to the names of the jurors who convicted actor/comedian Cosby of aggravated sexual assault. The court recognized there was a constitutional right of access to the names of jurors and that countervailing interests of privacy and security didn't outweigh the presumption of access! However, the court refused to identify the jurors for three weeks. Sometimes judges have issued restrictive orders barring the news media from questioning jurors about their deliberations. But as a general rule, an order barring media access to jurors for an unlimited duration is UNCONSTITUTIONAL, although there have been exceptions. Most state courts have their own rules regarding media access to jurors, and they vary. Federal judges are guided by The Handbook for Jurors, published by the U.S. Judicial Conference. The Handbook says it should be up to each juror to decide whether they talk to the press following a trial. Some appellate courts have not permitted trial judges to ban such interviews! Example: 9th Circuit struck down a lower-court order that prohibited anyone from interviewing jurors after a trial. The order was issued by the trial court to minimize harassment of jurors, according to trial judge, but the Court of Appeals ruled not all jurors might regard media interviews as harassing. The KY Supreme Court in 2000 overturned a trial court's order forbidding anyone to initiate contact with a juror even after the trial is completed. The order was needed, the trial judge said, to ensure jurors' personal safety and privacy. The state high court said the order was too broad. If a former juror doesn't want to talk with a reporter, they should refuse the interview. If the reporter persists, the former juror can complain to authorities about harassment or intimidation. They can even institute a civil suit against the reporter. But the court order barring anyone from contacting the former jurors after the trial went far beyond the court's jurisdiction, which ended when the trial ended. Finally, the U.S. Supreme Court ruled in 1990 a Florida statute prohibiting witnesses who testified before a grand jury from revealing what they had said, even after the grand jury's term had expired, was unconstitutional! Proceedings before grand juries are ultra-secret. Nothing but the true bill, or indictment, issued by a grand jury is part of the public record. A reporter was working on a story when he uncovered information the prosecutor believed the grand jury should hear. The reporter was subpoenaed and testified before the grand jury. After he had given his testimony, he sought to write a news story about his investigation as well as his experiences before the grand jury. But the statute blocked his effort, so he sued in U.S. District Court to have the law declared to be unconstitutional. The Supreme Court did just that. Chief Justice Rehnquist wrote traditionally courts have taken very seriously the need for secrecy in grand jury proceedings. But he said, "We have recognized the invocation of grand jury interests is not some talisman that dissolved all constitutional protections" In this case, the chief justice said, the situation involved a reporter's right to divulge information of which he was in possession before he testified before the grand jury, not information he had gained as a result of his participation in the grand jury proceeding. Citing the ruling in Smith v. Daily Mail Publishing Co., Rehnquist said the state could punish a journalist for publishing information that they had legally obtained! While important interests were at stake in maintaining a veil around the activities of a grand jury, these interests in this case were insufficient to outweigh the 1A interests! Restrictive orders that bar the press from publishing information about a criminal case have ceased (stopped) to be a serious problem for journalists. Orders that limit what trial participants can say remain a nuisance and probably do not serve the judicial system as well as many observers might imagine! Rumors tend to thrive in an atmosphere in which the release of accurate information is stifled. It would be better perhaps to provide journalists determined to publish something about a case with accurate and truthful statements than push them to report what is ground out by a rumor mill. Summary In some instances, trial courts have attempted to limit the publication of prejudicial information about a case by issuing court orders restricting what the press may publish or what the trial participants may say publicly about a case. These restrictive orders grew out of a famous U.S. Supreme Court decision in the mid-1960s that ruled a trial judge is responsible for controlling the publicity about a case! In 1976, Supreme Court ruled the press may not be prohibited from publishing information it has legally obtained about a criminal case unless these conditions are met: 1. Intense and pervasive publicity about the case is certain 2. No other reasonable alternative is likely to mitigate the effects of the pretrial publicity 3. The restrictive order will prevent prejudicial material from reaching the jurors In two subsequent rulings, the high court reaffirmed its 1976 decision that confidential information legally obtained by the press may be published! These cases involved the name of a juvenile suspect in a murder case and the names of judges whose conduct had been reviewed by a confidential state judicial commission. Although judges may still limit what trial participants say publicly about a case, even these restrictive orders have come under constitutional scrutiny in recent years. Press access to jurors following a trial is governed by various state and federal roles

Element #2: Highly Offensive Publicity If the determination has been made ... facts about a person's life have been given publicity, a court must ask TWO more questions: 1. Would a ... ... find the publicity given to the fact ... ...? 2. Was the private fact that was disclosed of ... ... ...? In other words, was the disclosed fact n...? -Judges and juries often faced with dilemma of deciding whether the revelation is im... but ... or ... information is an IOP. The law on this question is clear: if the material has ... ... ..., it doesn't matter how ... or ... the revelation is! Courts sometimes use the term ... interchangeably with concept of ... ... ... -Past 100 years, courts been very ... to fashion narrow limits on the kinds of information people need to receive. Time and time again judges ruled it is not only the responsibility of press to bring important ... information to the ..., but also the job of editors and reporters (not the ...) to decide what is and isn't ...! -If there is any ... ... in... at all, press will usually win regardless of how ... the revelation might be The revelation of the material must be ... ... to a ... ..., not to someone who is ... ... -Law worries about t... or e... plaintiffs who are ... ... and find anything ... -Without a ... ... standard, e... plaintiffs would recover damages too easily for normal emotional bumps encountered in daily life -Courts reject notion a parent or other relative can maintain privacy suit because of stories about the ... of a family member -Suits built around protecting ... information about the ... (drug use, gang member, suicide). REMEMBER: the right of privacy is a ... right (the ... must allege some kind of e... harm. Someone who is ... cannot do that) -But what about cases that focus on ... taken of the ...? Relatives claim the circulation or distribution of such ... would or did cause serious e... harm -Examples: U.S. Supreme Court upheld refusal of government agency to release the ...-s... ... of an aide to President Clinton because family complained their own privacy interests would be damaged if ... were made public. Agency was relying on a privacy exemption in the Freedom of Information Act to support its refusal (National Archives and Records Administration v. Favish) (2004) -But in 10th Circuit ruled Supreme Court ruling did not apply in case where father of ... soldier sued for IOP when an o... c... ... of his son was taken during a ... f... (inapplicable because Supreme Court was applying a statute - FOIA - and not considering a cause of action, so it was an intrusion case and not a private facts case) -3rd Circuit dismissed right of privacy suit brought by father of man who died accidentally or committed suicide, when ... of the body taken by a coroner found their way to the Internet -California Court of Appeals ruled trial court erred when it dismissed an IOP suit after police officers emailed ... of teen's decapitated corpse to acquaintances - family members had privacy interest in the ... ... of a family member. Since the ... didn't appear in any ... ... as part of a n... ..., the traditional defenses (the revelation was ..., was in the p... ... and therefore protected by ... ...) did not apply (Catsouras v. Department of the California Highway Patrol) (2010) The biggest expansion in the emerging privacy-of-death jurisprudence came from 9th Circuit Marsh v. County of San Diego (2012) Copying and disclosure of autopsy photographs by former deputy district attorney, gave one photo to a newspaper and the other to a TV station (2-year-old boy who died of severe head injuries allegedly caused by abusive adult) Mother sued fearing emotional harm by seeing the images in the news media and on Internet -Held the ... ... protects a parent's right to control the p... r..., m... and ... of a ... child against unwarranted p... e... by the ... -The first federal appellate court to recognize that individuals possess a ... right - not merely a ... or ... law right - to control public dissemination of a family members' ... ... (cited Favish and Catsouras favorably) -"Long-standing tradition of respecting family members' privacy in ... ... partakes both types of privacy interests protected by the ... Amendment" (d... ... right) N... (material constituting matter of ... ... c...) still provides a defense for journalists to the disclosure of such ... in a public disclosure of private facts case -N...-... ... of the ... may not rise to the level of offensiveness required for plaintiff to win a public disclosure of private facts case Barber v. Time (1942) Woman with unusual medical disorder - ate constantly but still lost weight - admitted to a hospital. Journalists tipped off, descended on her room, took pictures against patient's will. Time ran story on the patient, Barber, referring to her as the "starving glutton" -Barber sued and ... the case - It was more than the patient's ... of ... in a hospital room that influenced the ruling, since several decisions in which persons in hospitals have been considered to be subject of ... ... and didn't enjoy right to privacy) -Disorder wasn't contagious, and implications for the g... ... were minimal -Time story focused on Barber like she were a freak, doing so the revelation of this information was ... ... to any ... ...

Highly Offensive Publicity If the determination has been made that private facts about a person's life have been given publicity, a court must then ask two more questions: 1. Would a reasonable person find the publicity given to the fact highly offensive? 2. Was the private fact that was disclosed of legitimate public concern? In other words, was the disclosed fact newsworthy? Judges and juries are often faced with the dilemma of deciding whether the revelation of important, but offensive or embarrassing, information is an IOP. The law on this question is pretty clear: If the material is of LEGITIMATE PUBLIC CONCERN, it doesn't matter how offensive or embarrassing the revelation is. There was no IOP. Courts sometimes use the term "newsworthiness" interchangeably with the concept of "legitimate public concern." For past 100 years, courts have been very reluctant to fashion narrow limits on the kinds of info people need to receive. Time and time again judges have ruled it is not only the responsibility of the press to bring important public info to the public, but also it is the job of editors and reporters, not the courts, to decide what is and isn't important! If there is any legitimate public interest AT ALL in the material, the press will usually win the case, regardless of how embarrassing revelation of the material might be. The revelation of the material must be highly offensive to a reasonable person, not to someone who is overly sensitive. The test is this: Would a hypothetical reasonable person who is put in the same position as the plaintiff (the person suing) find the publicity given to the allegedly private fact highly offensive? A reasonable person is used because the law worries about thin-skull or eggshell plaintiffs who are overly sensitive and find anything and everything offensive. Without a reasonable person standard, eggshell plaintiffs would recover damages (money) far too easily for the normal emotional bumps and bruises we encounter in everyday life. Courts have typically rejected the notion a parent or other relative can maintain a privacy suit because of stories about the death of a family member. These suits are built around protecting private info about the deceased: they were a drug user, gang member, committed suicide, so on. The right of privacy is a PERSONAL RIGHT; the plaintiff must allege some kind of emotional harm. Someone who is dead cannot do that; the person's right of privacy ends with their death. But in recent years, in a DISCRETE set of cases, plaintiffs have raised a different argument. The cases have focused on photos taken of the deceased. The relatives claimed the circulation or distribution of such images would or did cause them serious emotional harm. 2004, U.S. Supreme Court upheld refusal of a government agency to release the death-scene photos of an aide to President Clinton because family members complained their own privacy interests would be damaged if the pictures were made public. The agency was relying on a privacy exemption in the Freedom of Information Act to support its refusal (National Archives & Records Administration v. Favish). But three years later, 10th Circuit (Showler v. Harper's Magazine Foundation) ruled this Supreme Court ruling didn't apply in a case where a father of a dead soldier sued for IOP when an open casket photo of his son was taken during a public funeral. The court said the 2004 ruling was inapplicable because the high court was applying a statute - the Freedom of Information Act - and not considering a cause of action for IOP. Was an intrusion case, not a private facts case. 2009, 3rd Circuit dismissed a right of privacy suit brought by father of a young man, who had died accidentally or committed suicide, when the photos of the body taken by a coroner found their way on the Internet. In 2010, a California Court of Appeals ruled a trial court had erred when it dismissed an IOP suit after police officers e-mailed photos of a teenager's decapitated corpse to acquaintances. The court in Catsouras v. Department of the California Highway Patrol ruled family members had a privacy interest in the death images of a member of the family. The court noted since the iamges didn't appear in any mass medium as a part of a news story, the traditional defenses in a private facts case (that the revelation was newsworthy, was in the public interest and therefore was protected by 1A) didn't apply. Perhaps the biggest expansion in the emerging privacy-of-death jurisprudence came in 2012 when 9th Circuit held in Marsh v. County of San Diego the U.S. Constitution 'protects a parent's right to control the physical remains, memory and images of a deceased child against unwarranted public exploitation by the government' In becoming the first federal appellate court to recognize that individuals possess a constitutional right - not merely a statutory or common law right - to control public dissemination of a family member's death images, 9th Circuit cited favorably both Favish and Catsouras. Writing for unanimous three-judge panel, Kozinski wrote 'the long-standing tradition of respecting family members' privacy in death images partakes of both types of privacy interests protected by the 14th Amendment' Marsh involved copying and disclosure of autopsy photographs by a former deputy district attorney, who gave one photo to a newspaper and a TV station. The photos depicted 2-year-old boy who died of severe head injuries allegedly caused by an abusive adult. The deceased boy's mother sued, fearing emotional harm she would suffer by seeing the images in the news media and on Internet. Kozinski reasoned the mother's fear 'isn't unreasonable given the viral nature of the Internet, where she might easily stumble upon photos of her dead son on news Web sites, blogs or social media Web sites. This intrusion into the grief of a mother over her dead son - without any legitimate governmental purpose - 'shocks the conscience' and therefore violates Marsh's substantive due process right' It must be pointed out that newsworthiness (material constituting matter of legitimate public concern) still provides a defense for journalists to the disclosure of such images in a public disclosure of private facts case. Furthermore, non-gruesome images of the dead may not necessarily rise to the level of offensiveness required for a plaintiff to win a public disclosure of private facts lawsuit. Many years ago, woman with rather unusual medical disorder - ate constantly, but still lost weight - was admitted to a hospital. Journalists tipped off and descended on her room, pushed past closed door and took picture against the patient's will. Time ran a story about the patient, Dorothy Barber, and in it referred to her, in Time, as the 'starving glutton.' Barber sued and won the case. The judge said the hospital is one place people should be able to go for privacy. More than the patient's expectation of privacy in a hospital room influenced the ruling, because there are several decisions in which persons in hospitals have been considered to be the subject of legitimate concern and did not therefore enjoy the right to privacy. The story about the unusual disorder was surely offensive, almost mocking. The disorder wasn't contagious, and the implications for the general public were minimal. The Time story seemed to focus on Barber almost as if she were a freak, and in doing so the revelation of this info was highly offensive to any reasonable person, the court ruled.

State Laws on Meetings and Records Not easy to talk about access at the state level as it is at the federal level because the discussion involves ... of different ...! Most states have ... laws dealing with access to meetings, access to records and other access situations All we can do is devise a few ... Harold Cross made some of the most astute ... in 1953, The People's Right to Know. Cross was the first scholar to present a comprehensive report on access problems! Four issues/questions common to every case of access... 1. Is the particular record or proceeding ...? Many records and meetings kept or conducted by ... o... in ... o... are not really ... at all! Much of the work of the police, though they are ... o... and work in ... b... is not open to ... s...! 2. Is ... material ... in the sense that records are open to ... in... and sessions are open to ... a...? Hearings in juvenile courts are considered ... h... for purposes of the law, but they are often not open to the ...! 3. Who can view the records and who can attend the meetings ... to the ...? Many records, for example, might be ... to s... s... of the ... but not to ... s... of the ...! Automobile accident reports by police departments are ... to insurance company adjusters and lawyers, but such records are not usually ... to the ... ... 4. When records and meetings are ... to the ... ... and ..., will the courts provide ... r... for citizens and reporters if access is ...? -The last question isn't as important today (probably) as it was when Cross wrote in 1953. At that time access to many public records and meetings in the states was based on ... law; Today this is no longer true! Access to meetings and records is nearly always governed by ..., and these ..., usually but not always provide a ... for citizens who are ... access. This provision is more widespread in ...-... laws, which tend to be more e... in providing access than in ...-... laws, which are still weak and vague in many jurisdictions State Open-Meetings Laws -... states have statutes that mandate open meetings, and these laws range from good to awful -It is difficult to make ... about all the laws dealing with open government in ... states -Reporters Committee for Freedom of the Press - Open Government Guide [compendium of information on each state's open records and meetings laws] One of the most important aspects of any open-meetings law is the s... ... that may be imposed on ... o... who fail to follow the mandate of the law! Laws that provide for s... p... ... against these individuals are generally more desirable than laws that impose only s... ... or ... p... at all Can a state's open meetings law include ... s... and ... for ... o... who violate it? ...!!! 5th Circuit, Asgeirsson v. Abbott (2012) -A challenge to the Texas Open Meetings Act brought by local government officials. Like many open meetings laws, TOMA requires meetings of governmental bodies to be open to the public. It prohibits members of governing bodies from knowingly participating in closed meetings, organizing closed meetings or closing meetings to the public. Violations are considered ... punishable by a ... of up to $500 and/or ... time ranging from 1 to 6 months -Government officials claimed this violated their 1A speech rights by criminalizing political speech if it did not occur in an open meeting (private political speech at a closed-door meeting) -5th Circuit ... this challenge and ... TOMA, including ... s... for ... ... who violate it. The court wrote the law serves many substantial interests that justify it (reducing government corruption, increasing transparency of government, fostering trust in government and ensuring all members of a governing body take part in the discussion of public business) Another important part of open-meetings laws is the ... d... at the ... of the law! A c..., s... statement in favor of o... ... to meetings of government bodies can persuade a judge trying to interpret the law to side with the advocates of ... than with the ...! Example: WA's open meetings law b...: "The legislature finds and declares that all public agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this chapter their actions be taken openly and their deliberations be conducted openly" State open-meetings laws are normally written in one of two ways: 1. Some laws declare ... meetings are ..., ... the following. Meetings that are ... are listed OR 2. Other laws simply list the ... that must hold ... meetings State ... are generally excluded from provisions of their state open-meetings law. But the issue is not quite as clear-cut as federal law. Some state open-meetings laws do in fact cover some kinds of ... proceedings! State open-meetings laws routinely do not include meetings of p... and p... b...; of ... ... agencies; of ... agencies like the National Guard; of ... agencies like h... b..., etc. Can a state's open-meetings statute fail to define a k... ... such as "..." and nonetheless be constitutional? ...!!! Supreme Court of Arkansas, McCutchen v. City of Fort Smith -Involved open-meetings provision of the Arkansas FOIA. A key issue was whether the circulation of a memorandum by a member of the board of directors (of city of Fort Smith) to other board members in advance of an official study session. The memorandum expressed one board member's opinion and background information on a proposed ordinance that was to come before the board -Supreme Court of Arkansas engaged in ... ..., examining the ... in... and h... behind the purpose of the Arkansas FOIA. After doing so, the court concluded board member's actions did not constitute a meeting and thus did not violate the Arkansas statute -"It is left to the judiciary to give effect to the in... of the l..., and in our prior decisions construing the Arkansas FOIA, we have given effect to that in..." -As for the absence of the ... d... of the ... "..." the court concluded those challenging the constitutionality should ask the ... - not the ... - to provide a better d...! -Separation of powers between the ... and ... branches of government, with the role of ... being to draft laws and the role of the ... being to interpret them Most open-meetings laws provide for ... meetings or ... s... in certain kinds of cases! -Meetings at which ... p... are discussed (an obvious example) [Example: A public airing of a teacher's personal problems could be an u... ... of ...!] -... ... transactions (another obvious example) -All but about a dozen state open-meetings laws contain a provision that no ... a... can be taken at an ... s..., the board or commission must reconvene in ... before a ... d... can be made on any issue! When a presiding officer of a governmental body announces at a meeting the body is going into ... s..., a reporter at the meeting should make certain of the following: 1. The presiding officer has specified what ... will be discussed during the ... session, or why the ... s... has been called 2. A reporter who believes a meeting is being ... im... should formally ...! Should ask the members of the body specifically which provision in the law they are going to use to go into ... s...! Not inappropriate to ask for a ... of the body to make certain the required s... ... (or ...-... m... in some states) approves of the ... s... 3. The reporter should also ask what ... the ... s... will ..., so they can attend a reconvened ... session Most open-meetings statutes require not only meetings be open to the public, but also the public be notified of both r... and s... meetings f... e... in ... so they can attend if they wish -These ... requirements vary, but normally a s... meeting cannot be held without an announcement a ... or ... in advance Virtually all laws provide some kind of in... or other ... r... if the law is violated; almost half the statutes provide for ... p... if the statute is knowingly violated. In many states any action taken at a meeting that was not ... but should have been ... is n... and v...! (The ... must be taken ... at a proper meeting) Most laws provide f... and short ... t... for public officers who ... violate the law but p... is rare! What should a reporter do when asked to leave a meeting they believe should be open to the press and public? 1. Find out who ... you access to the meeting and ask for the l... b... of his denial 2. Never leave a meeting ...; but if ... to leave, do so and contact your ... immediately 3. R... is not advised, for ... c... may be filed against you Whereas open-meetings laws provide a good means of access to proceedings, the reporter possess a more powerful weapon - the power of ...! Public officials do not like ... about ... meetings! 4. If an agency abuses its right to meet in ... s..., describe the meetings for what they are - ... s...! (Will often get a reporter back into a proceeding faster than a ... a...!) Open-Meeting tips for reporters -Ask for the ... ... for closure -Find out ... is asking the meeting be closed and ... -Never leave a meeting ..., but do not ... being escorted out the door -Call your ... immediately -Use ... as well as the ... to gain access

State Laws on Meetings and Records It is not easy to talk about access at the state level as it is at the federal level because the discussion involves hundreds of different statutes. (Most states have multiple laws dealing with access to meetings, access to records and other access situations). Provide at best a few generalizations. Harold Cross made some of the most astute generalizations in 1953, pioneering book, The People's Right to Know. Cross really the first scholar to present a comprehensive report on access problems. Listed four issues, or questions, common to every case of access: 1. Is the particular record or proceeding public? Many records and meetings kept or conducted by public officers in public officers are not really public at all. Much of the work of the police, though they are public officers and work in public buildings, is not open to public scrutiny. 2. Is public material public in the sense that records are open to public inspection and sessions are open to public attendance? Hearings in juvenile courts are considered public hearings for purposes of the law, but they are often not open to the public. 3. Who can view the records and who can attend the meetings open to the public? Many records, for example, might be open to specific segments of the public, but not to all segments. Automobile accident reports by police departments are open to insurance company adjusters and lawyers, but such records are not usually open to the general public. 4. When records and meetings are open to the general public and press, will the courts provide legal remedy for citizens and reporters if access is denied? The last question is probably not as important today as it was when Cross wrote in 1953, for at that time access to many public records and meetings in the states was based on common law. Today this fact is no longer true. Access to meetings and records is nearly always governed by statute, and these statutes, usually, but not always, provide a remedy for citizens who are denied access. This provision is more widespread in open-meetings laws, which tend to be more efficient in providing access, than in open-records laws, which are still weak and vague in many jurisdictions. State Open-Meetings Laws All 50 states have statutes that mandate open meetings, and these laws range from good to awful! It is difficult to make generalizations about all the laws dealing with open government in all 50 states. The Reporters Committee for Freedom of the Press publishes an Open Government Guide. The guide is meant to serve as complete compendium (collection) of information on every state's open records and open meeting laws. Each state's section is arranged to a standard outline, making it easy to compare laws in various states. One of the most important aspects of any open-meetings law is the strong sanctions that may be imposed on government officials who fail to follow the mandate of the law. Laws that provide for substantial personal fines against these individuals are generally more desirable than laws that impose only small fines or no penalties at all. Can a state's open meetings law include criminal sanctions and punishments for government officials who violate it? YES, according to 5th Circuit's ruling in Asgeirsson v. Abbott (2012). The case involved a challenge to the Texas Open Meetings Act (TOMA) brought by a number of local government officials. Like many open meetings laws, TOMA requires meetings of governmental bodies to be open to the public. It prohibits members of governing bodies from knowingly participating in closed meetings, organizing closed meetings or closing meetings to the public. Violations are considered misdemeanors punishable by a fine of up to $500 and/or jail time ranging from 1 to 6 months. In Asgeirsson, the government officials claimed this violated their 1A speech rights by criminalizing political speech - discussions of public business - if it did not occur in an open meeting (TOMA punishes government officials when they engage in private political speech at a closed-door meeting). 5th Circuit rejected this challenge and upheld TOMA, including criminal sanctions for government officials who violate it. The court wrote the law serves many substantial interests that justify it, including reducing government corruption, increasing transparency of government, fostering trust in government and ensuring all members of a governing body take part in the discussion of public business. Another important part of open-meetings law is the legislative declaration at the beginning of the law. A clear, strong statement in favor of open access to meetings of government bodies can persuade a judge trying to interpret the law to side with the advocates of access than with the government. Example: In state of Washington, open meetings law begins: "The legislature finds and declares that all public agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this chapter their actions be taken openly and their deliberations be conducted openly." State open-meetings laws are normally written in one of two ways: 1. Some laws declare all meetings are open, except the following. Meetings that are closed are then listed. 2. Other laws simply list the agencies that must hold open meetings. State legislature are generally excluded from provisions of their state open-meetings law. But the issue is not quite as clear-cut as the situation at the federal level. Some state open-meetings laws do in fact cover some kinds of legislative proceedings. State open-meetings laws routinely do not include meetings of parole and pardon boards, of law enforcement agencies, of military agencies like the National Guard, of medical agencies like hospital boards, etc. Can a state open-meetings statute that fails to define a key term such as "meeting" nonetheless be constitutional? YES, according to Supreme Court of Arkansas in 2012 ruling McCutchen v. City of Fort Smith. Case involved open-meetings provision of the Arkansas FOIA. A key issue was whether the circulation of a memorandum by a member of the board of directors of the City of Fort Smith to other board members in advance of an official study session constituted a meeting. The memorandum expressed one board member's opinion and background information on a proposed ordinance that was to come before the board. Supreme Court of Arkansas engaged in statutory construction, examining the legislative intent and history behind the purpose of the Arkansas FOIA. After doing so, the court concluded board member's actions did not constitute a meeting and thus did not violate the Arkansas statute. It noted "it is left to the judiciary to give effect to the intent of the legislature, and in our prior decisions construing the Arkansas FOIA, we have given effect to that intent" As for the absence of the statutory definition of the term "meeting" the court concluded those challenging the constitutionality should ask the legislature - not the court - to provide a better definition. This last point illustrates the separation of powers between the legislative and judicial branches of government, with the role of legislature being to draft laws and the role of the judiciary being to interpret them. Most open-meetings laws provide for closed meetings, or executive sessions, in certain kinds of cases. Meetings at which personnel problems are discussed are an obvious example. A public airing of a teacher's personal problems could be an unwarranted IOP. The discussion of real estate transactions is another obvious example. All but about a dozen state open-meetings laws contain a provision that no final action can be taken at an executive session, that the board or commission must reconvene (reassemble, come back together) in public before a final determination can be made on any issue. When a presiding officer of a governmental body announces at a meeting the body is going into executive session, a reporter at the meeting should make certain of the following items: 1. The presiding officer has specified what topics will be discussed during the closed session, or why the executive session has been called 2. A reporter who believes that a meeting is being closed improperly should formally object. They should ask members of the body specifically which provision in the law they are going to use to go into closed session. It is not inappropriate to ask for a vote of the body to make certain the required simple majority (or two-thirds majority in some states) approves of the closed session 3. The reporter should also ask what time the closed session will end, so they can attend a reconvened public session Most open-meetings statutes require not only that meetings be open to the public, but also that the public be notified of both regular and special meetings far enough in advance they can attend if they wish. Time requirements vary, but normally a special meeting cannot be held without an announcement a day or two in advance Virtually all laws provide some kind of injunctive or other civil remedy if the law is violated; almost half statutes provide for criminal penalties if the statute is knowingly violated. In many states any action taken at a meeting that was not public, but should have been public, is null and void. The action must be taken again at a proper meeting. Most laws provide fines and short jail terms for public officers who knowingly violate the law, but prosecution is rare. What should a reporter do when asked to leave a meeting that they believe should be open to the press and public? First, find out who has denied you access to the meeting and ask for the legal basis of his denial. Never leave a meeting voluntarily; but if ordered to leave, do so and contact your editor immediately. Resistance is not advised, for criminal charges may be filed against you. Whereas open-meetings laws provide a good means of access to proceedings, the reporter possesses what is probably a more powerful weapon - the power of publicity. Public officials do not like stories about secret meetings. If an agency abuses its right to meet in executive session, describe these meetings as they really are - secret sessions. A photo essay showing a meeting room door open, closing and closed, accompanied by a caption citing appropriate parts of the open-meetings law, will often get a reporter back into a proceeding faster than a court action. Box: Open-Meetings tips for reporters è Ask for the legal basis for closure è Find out who is asking the meeting be closed and why è Never leave a meeting voluntarily, but do not resist being escorted out the door è Call your editor immediately è Use publicity as well as the law to gain access

Children as Child Pornographers and Sexting -Another issue involving child pornography involves minors who ... their ... sexual content and then post the images on ... ... n... or trade them via ..., latter process known as sexting -Sexting among minors first gained national attention in 2008-9 when some prosecutors began charging 14 and 15-year-olds with ..., ... and ... child pornography after they were caught trading sexually explicit images of ... on cell phones -Maryland Court of Appeals (their Supreme Court) in 2019 upheld punishment of 16-year-old female student for distributing child pornography - video of herself performing sexual act on someone. Sent video file as text message with two friends, one friend shared video with other students and school's resource officer A picture or video showing a "l... ... of the ... or ... area" of a person under ... constitutes as child pornography, as well as images of ...; in addition to images of sexual acts (seen above) -Minors who ..., ... and/or ... such photos and videos of ... or other ... are not ... from child pornography statutes! Starting in 2010-11, some states began adopting new statutes to address sexting between minors because the application of ... child pornography laws seemed too ..., especially when the sexting was ... and confined between two w... ... Why? A minor convicted on child pornography charges for engaging in sexting is guilty of a ..., can serve five years in prison for a single count of transmitting or possessing child pornography and will likely have to register as a ... ... (a stigma that will haunt them for life) By 2021, more than 25 states have adopted some form of sexting legislation -Maryland is not one of these states, hence why the 16-year-old was charged with distributing child pornography -Louisiana's sexting law: "no person under the age of 17 years shall k... and ... use a computer or telecommunication device to transmit an in... ... depiction of ... to another person" -Most of the new legislation either reduces c... sexting committed by ... of a certain age to only a ... offense, than a ..., or treats it (at least on first occasion for minor) as a ... offense subject only to monetary fines and/or community service Obscenity and Women -Some feminist scholars assert sexually explicit content s... women to men, ... and e... women as s... ... for men's pleasure and leads to ... -Indianapolis adopted statute in 1984 based on such arguments, banning "..." not ...! -Defined ... as "the graphic sexually explicit s... of women, whether in pictures or in words" also includes women being presented "as ... ... who enjoy pain or humiliation" or as "... ... for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of s... or s... or display" -In 1985, appellate court declared the law ...! American Booksellers Association, Inc. v. Hudnut, -Went far beyond regulating ... under the ... test. The court found the statute constituted ...-... ... on speech. Under the statute, "speech that 's...' women and presents women in 'positions of s...or s... or display' is forbidden, no matter how great the ... or ... ... of the work taken as a ... -Speech that portrays women in positions of e... is lawful, no matter how g... the sexual content -The decision ended adoption of similar laws in the U.S.

Children as Child Pornographers and Sexting Another issue regarding child pornography involves minors who create their own sexual content and then post the images on online social networks or trade them via phones, the latter process known as sexting. What happens when a child is a child pornographer? Sexting among minors first gained national attention around 2008/9 when some prosecutors began charging 14- and 15-year-olds with creating, distributing and possessing child pornography after they were caught trading sexually explicit images of themselves on cell phones. But the problems with sexting continues today. In 2019, Maryland's highest appellate court (called Court of Appeals than Supreme Court) upheld the punishment of a 16-year-old female student for distributing child pornography - which was a video of herself performing a sex act on someone. She sent the video file as a text message to two of her friends, and one of the friends later shared the video with other students and with the school's resource officer A picture or video showing a "lascivious exhibition of genital or the pubic area" of a person under age 18 constitutes child pornography, as well as images of masturbation. Minors who take, possess and/or distribute such photos or videos of themselves or other minors are not exempt from child pornography statutes. Starting in 2010 and 11, some states began adopting new statutes to address sexting between minors because the application of traditional children pornography laws seemed far too harsh, especially when the sexting was consensual and confined between two willing minors. Why? Because a minor convicted on child pornography charges for engaging in sexting is guilty of a felony, can serve five years in prison for a single count of transmitting or possessing child pornography and will likely have to register as a sex offender, a stigma that will haunt them for life. By 2021, more than 25 states have adopted some form of sexting legislation (Maryland is not one of these states, which is why the 16-year-old was charged with distributing child pornography). Louisiana's sexting law, provides "no person under the age of 17 years shall knowingly and voluntarily use a computer or telecommunication device to transmit an indecent visual depiction of himself to another person" Most of the new legislation either reduces consensual sexting committed by minors of a certain age to only a misdemeanor offense, rather than a felony, or treats it (at least on first occasion for a minor) as a noncriminal offense subject only to monetary fines and/or community service obligations. Five students charged with sexting at Stonington High School in CT in 2018. Sexting is considered a misdemeanor under the state's teenage sexting law and is punishable by up to a year in jail and or a fine up to $2,000 Obscenity and Women Some feminist scholars assert that sexually explicit content subordinates women to men, objectifies and exploits women as sex objects for men's pleasure and leads to violence. In 1984, Indianapolis adopted a statute, based on such arguments, banning "pornography" - not obscenity. It defined pornography as "the graphic sexually explicit subordination of women, whether in pictures or in words" that also includes such things as women being presented "as sexual objects who enjoy pain or humiliation" or as "sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display" In 1985, appellate court declared the law unconstitutional in American Booksellers Association, Inc. v. Hudnut, noting it went far beyond regulating obscenity under the Miller test. The court found the statute constituted viewpoint-based discrimination on speech. Under the statute, "speech that 'subordinates' women and also, for example presents women in 'positions of servility or submission or display' is forbidden, no matter how great the literary or political value of the work taken as a whole. Conversely, speech that portrays women in positions of equality is lawful, no matter how graphic the sexual content. This is thought control. It establishes an 'approved' view of women." The decision ended adoption of similar laws in the U.S. Summary The Miller test is used today by American courts to determine whether something is obscene. It has three parts. Material is obscene if: 1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to a prurient interest in sex. This requires the fact finder to apply local (usually state) standards than a national standard 2. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. The fact finder in the case determines patent offensiveness, based on local community standards. But the Supreme Court has ruled only so-called hard-core pornography can be found to be patently offensive. Also, either the legislature or the state supreme court must specifically define the kind of offensive material that may be declared to be obscene 3. The material lacks serious literary, artistic, political or scientific value The Supreme Court has ruled states may use a broader definition of obscenity when they attempt to block the sale or distribution of erotic material to children or when they attempt to stop the exploitation of children who are forced to engage in sexual conduct by filmmakers. But such laws must be careful so as to not unconstitutionally ban legal material as well. Laws aimed at stopping the use of children in preparing sexually explicit material have also been permitted by the Supreme Court

Nonconsensual Pornography Laws and the First Amendment -By 2021, 48 states and D.C. had laws prohibiting the distribution of nonconsensual pornography - when sexually explicit images and videos are disclosed without a person's consent -Sometimes called "... ... laws" though ... sometimes is misleading, as someone who shares such an image might be motivated by profit or notoriety, not ... -Laws are relatively ...! ... ... was the first state to pass one in 2004. Most of the laws that followed have since been enacted within the past decade or so -Details of the laws ...! Some states classify the distribution or production of nonconsensual pornography as a ...; others deem it a ...; in still others, distributors have been convicted of either a ... or ... depending on the facts of the case. Some statutes provide victims with ... ... r... (allowing victims to s... their alleged perpetrators for ... d...) Recently appellate courts in at least four states have upheld these laws against ... ... challenges! -Minnesota Supreme Court (2020) upheld Minnesota's statute. That law makes it a crime to "intentionally disseminate an image of another person who is depicted in a sexual act or whose intimate parts are exposed, in whole or in part" when the person in the image 1) is identifiable, 2) doesn't consent to dissemination, 3) when the disseminator of the image ... or should have ... the person in the image had a ... ... of ...! -Texas Court of Appeals; Vermont Supreme Court; Illinois Supreme Court (instead of ... s..., ... s... - ruled it was a ...-... regulation) State v. Casillas (2020, Minnesota Supreme Court) -The statute did not violate the ... ... because it passed ... s... standard. To survive ... s..., government must prove a) It has a ... ... (... of the ... ...) in regulating the speech at issue b) The means of serving that ... are ... t... to regulate speech in the ... r... way a) The state had a ... ... in regulating speech - exposes the victim's most intimate moments to others against the victim's will; victims often deeply and permanently scarred and may develop PTSD, anxiety, depression, despair, loneliness, alcoholism, drug abuse, significant losses in self esteem-confidence-trust b) The law was also ... t...: it criminalized private sexual images intentionally disseminated without consent while allowing appropriate ... such as for images that involve matters of ... ... (photojournalist publishing nude images of battle scenes or natural disasters) -Though ... ... attacks on nonconsensual pornography statutes in other states will arise in coming years, three things now clear: a) Because nonconsensual pornography doesn't fall into an ... c... of ... such as obscenity or child pornography, laws targeting it must survive ... r... b) Most state appellate courts have applied ... s... in reviewing the statutes (only regulates a ... t... of content (...-... regulation); images featuring nudity or sexual content) c) Courts have ... these laws under ... s..., citing ... ... in protecting victims from various types of harm (emotional harm and IOP) and finding the laws ... t... if they are limited only to nonconsensual dissemination and involve language limiting their application to situations where a defendant ... or reasonably should have ... the victim expected the images to remain private Online Speech Rights of Sex Offenders: The Packingham Case Packingham v. North Carolina (2017) -Supreme Court decision...? -U.S. Supreme Court struck down North Carolina statute that made it a crime for a registered sex offender simply to access a c... ... ... site, such as Facebook or Twitter -Supreme Court said even assuming the law was a ...-... regulation subject to ... s..., it was not ... t... to serve a ... government ... ("A more specific law - one that prohibited a sex offender from engaging in conduct that often presages a ... ..., like contacting a minor or using a website to gather information about a minor" could pass muster) But instead, the law here enacts a prohibition unprecedented in the scope of the ... ... s... it burdens - with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge

Non-Consensual Pornography Laws and the First Amendment By 2021, 48 states and D.C. had laws prohibiting the distribution of non-consensual pornography - when sexually explicit images and videos are disclosed without a person's consent. Sometimes called revenge porn laws, though revenge sometimes is misleading, as someone who shares such an image might be motivated by profit or notoriety not revenge Laws are relatively new. New Jersey was the first state to pass one in 2004. Most of the laws that followed have been enacted only within the past decade or so. Details of the laws vary. Some states classify the distribution or production of nonconsensual pornography as a misdemeanor. Others deem it a felony. In still others, distributors have been convicted of either a felony or misdemeanor depending on the facts of a case. Some statutes provide victims with civil law remedies (allow victims to sue their alleged perpetrators for monetary damages) Recently, appellate courts in at least four states have upheld these laws against 1A challenges. 2020, Minn. Supreme Court upheld Minnesota's statute. That law makes it a crime to "intentionally disseminate an image of another person who is depicted in a sexual act or whose intimate parts are exposed, in whole or in part" when the person in the image 1) is identifiable, 2) doesn't consent to dissemination, and 3) when the disseminator of the image knew or should have known the person in the image had a reasonable expectation of privacy State v. Casillas (2020) Minnesota Supreme Court ruled the statute did not violate 1A because it passed strict scrutiny standard of judicial review. To survive strict scrutiny, government must prove 1) it has a compelling interest (interest of the highest order) in regulating the speech at issue and 2) the means of serving that interest (terms of the statute) are narrowly tailored to regulate speech in the least restrictive way Minnesota Supreme Court ruled the state had a compelling interest in regulating speech that presents a "serious problem" and a "grave threat to everyday Minnesotans whose lives are affected by the single click of a button" The court said the nonconsensual dissemination of private sexual images "exposes the victim's most intimate moments to others against the victim's will. Those who are unwilling exposed to their friends, family, bosses, co-workers, teachers, fellow students, or random strangers on the internet are often deeply and permanently scarred by their experience. Suffer from PTSD, anxiety, depression, despair, loneliness, alcoholism, drug abuse, and significant losses in self-esteem, confidence and trust" The court also included the law was narrowly tailored: It criminalized private sexual images intentionally disseminated without consent while allowing for appropriate exemptions such as for images that involve matters of public interest (photojournalist publishing nude images of battle scenes or natural disasters) 2021, Texas Court of Criminal Appeals also upheld its state's nonconsensual pornography law under strict scrutiny. The Vermont Supreme Court did same in 2018 (Vermont v. VanBuren). And in 2019 case of People v. Austin, Illinois Supreme Court ruled its state's law was a content-neutral regulation that passed intermediate scrutiny judicial review (less demanding test than strict scrutiny) Though 1A attacks on nonconsensual pornography statutes in other states will arise in the coming years (Indiana's statute was being challenged in 2021), three things are now clear: 1. Because nonconsensual pornography doesn't fall into an unprotected category of speech such as obscenity or child pornography, laws targeting it must survive judicial review. Courts have not created a new category of unprotected speech called nonconsensual pornography 2. Most state appellate courts (Illinois was the lone exception) have applied STRICT SCRUTINY in reviewing the statutes. Because the laws regulate only a SPECIFIC TYPE of content - images featuring nudity or sexual content - and content-based laws are generally subject to strict scrutiny 3. Courts have upheld these laws under strict scrutiny, citing compelling interests in protecting victims from various types of harm (emotional harm and IOP) and finding the laws narrowly tailored if they are limited to ONLY nonconsensual dissemination and involve language limiting their application to situations where a defendant knew or reasonably should have known the victim expected the images to remain private Online Speech Rights of Sex Offenders: The Packingham Case Packingham v. North Carolina (2017) (8-0) U.S. Supreme Court struck down NC statute that made it a crime for a registered sex offender simply to access a commercial social networking site, such as Facebook and Twitter. The Supreme Court said even assuming the law was a content-neutral regulation subject to intermediate scrutiny, it was not "narrowly tailored to serve a significant/substantial government interest" "A more specific law - one that prohibited a sex offender from engaging in conduct that often presages (sign/warning something will happen) a sexual crime, like contacting a minor or using a website to gather information about a minor" could pass muster, Court said. But instead, Kennedy wrote, the law here enacts "a prohibition unprecedented (never done or seen before) in the scope of the First Amendment speech it burdens" "North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vase realms of human thought and knowledge" Summary Significant efforts are made to control non-obscene sexual expression. Many cities one SOBs and impose regulations on the sexual expression that is nude dancing inside SOBs. Museums, musicians, comedians and other forms of popular culture have faced the wrath of government officials for sexual content. The Internet is a key battleground for censorship of sexually explicit conduct, as evidenced by three major Congressional efforts to regulate it since 1996: CDA, COPA, and CIPA. 2018, Congress passed law aimed at curbing sex trafficking online. By 2021, most states had laws prohibiting distribution of nonconsensual pornography. And in 2017 case, Supreme Court struck down law that prevented registered sex offenders from accessing social networking sites

Access to Government Officials: A Right to Interview? Past examples discussed 1A access to a place (government-run prison), proceeding (government meeting or execution), or government documents What happens when a reporter simply wants access to speak with a person - a government official like a mayor or governor - and that official has issued a "n...-..." policy and refuses to speak with specific members of the media? Is there a 1A right of ... for the media to conduct one-on-one interviews with government officials such that the officials CANNOT refuse to speak with the news media? The answer appears to be ...! 1. 4th Circuit (2004) held then MD governor Ehrlich ... violate 1A right of two Baltimore Sun reporters when he issued a directive denying interview access (Baltimore Sun v. Ehrlich) -The paper claimed the n...-... directive was in retaliation for negative coverage and commentary by the two journalists -The appellate court held "no actionable r... c... arises when a government official denies a reporter access to d... a... information or refuses to answer questions" The governor's response to the Sun's coverage is a "p... feature of journalism and journalists' interaction with government" -Having access to relatively ... information than other reporters on account of one's ... is so commonplace, to allow the Sun to proceed on its r... c... would plant the seed for a constitutional case in every interchange between public official and press 2. Federal district court decision, Youngstown Publishing Co. v. McKelvey (2005). Judge held a n...-... policy by the then mayor of Youngstown, OH directing city employees not to speak with reporters from Business Journal ... violate the 1A. "The right of ... sought by the Business Journal is to information not otherwise available to the ...! Therefore, is a p... right of ... above that of the ... ... to which no constitutional right of ... applies" This policy doesn't impede on reporters from engaging in a ... protected activity 3. Citicasters Co. v. Finkbeiner, federal judge (2007) ruled the mayor of Toledo, OH could not exclude a specific radio reporter from attending the mayor's press conferences that are generally open to ... ...! Reasoned a press conference is a ... event, in contrast to Ehrlich and McKelvey in which reporters were denied private interview access or direct comments to their questions 4. BUT in 2021, 7th District ruled WI governor (Evers) did not violate 1A when his office barred reporters from a conservative think tank from accessing his p... b...; think tank sued. Institute alleged the governor barred the institute's news services from a press event and from its media list because of its viewpoint. 7th District noted the institution asked to attend a "...-a..." ... event - an event not open to the ... ... or even to all ...! -The 7th District categorized the event as a ... f... - meaning any restrictions on speech activities needed to be r... and ... n... -7th Circuit held the criteria the governor used to determine media ... (organizations whose principal business is news dissemination and favored media that avoided real or perceived COIs or entanglement with special interest groups) were ... and ... n...! [appellate court pointed out the governor also excluded a liberal think tank from its media list] "Protecting the right of nonobjective media producers does not mean the Governor must grant every media outlet ... to every ... c...! Cannot fathom the chaos that might ensue if every governor press event had to be open to any 'qualified' journalist with only the most narrowly drawn restrictions on who might be excluded." While government officials can refuse to grant ...-on-... ... a... to s... reporters and can refuse to give comments to s... members of the news media, they CANNOT selectively deny a... to specific reporters from ... c... without having articulated ... and ...-n... criteria to explain their media policy!!! A right to White House access? Two legal clashes emerged over journalists' access to the White House: -Trump administration revoked CNN correspondent Acosta's credentials ("hard pass") after Acosta and Trump had verbal exchanges during news conference -Trump administration suspended for 30 days the credentials of Playboy correspondent and CNN analyst Karem - argument with former WH aide at Rose Garden event CNN's lawsuit argued administration violated Acosta's 1A right to r... on the g... and his ... p... rights under the ... Amendment by revoking his credentials w... w...! ... Amendment provides no person shall be deprived of "..., ..., or ... without ... p... of the law" Point to Sherrill v. Knight (1977), U.S. Court of Appeals for D.C. ruled in favor of reporter who had been denied WH credentials - reasoned access to WH press facilities could not be denied a... or for less than c... reasons -District Court Judge sided with ... (CNN v. Donald J. Trump) - but he did not rule on the ... Amendment issue (CNN was likely to prevail on its ... Amendment claim - had not received sufficient n... or e... before his credentials were revoked or given the time to respond if they were revoked) -Karem's lawsuit (Karem v. Trump) also successful on ... p... but not ... Amendment grounds! Preliminary injunction to reinstate Karem. U.S. Court of Appeals for D.C. upheld (nothing put him on n... of the magnitude of the sanction [a month-long loss of his WH access] for his unprofessional conduct at the non-press-conference event) Reporters Committee for Freedom of the Press (amici curiae) - "Suspending a journalist's ... p... and denying them access to the WH press facilities deprives the public of reporting about ... and their a... and may only occur when stringent and exacting ... Amendment and ... p... requirements are satisfied!"

Access to Government Officials: A Right to Interview? Each example so far involved a question of First Amendment access to either a place, like a government-run prison, or to proceedings, like a government meeting or an execution, or to government documents. But what happens when a reporter simply wants access to speak with a person - namely, a government official like a mayor or a governor - and that official has issued a "no-comment policy" and refuses to speak with specific members of the press? Is there a First Amendment right of access for the media to conduct one-on-one interviews with government officials such that the officials cannot refuse to speak with the news media? The answer appears to be NO. 2006, 4th Circuit held that then Maryland governor Ehrlich Jr. did not violate First Amendment rights of two Baltimore Sun reporters when he issued a directive denying them interview access. In Baltimore Sun v. Ehrlich, the paper claimed the no-access directive was in retaliation for what the governor believed was negative coverage and commentary by Sun journalists Nitkin and Olesker. The appellate court though held "no actionable retaliation claim arises when a government official denies a reporter access to discretionarily afforded information or refuses to answer questions" It reasoned the governor's response to the Sun's coverage is "a pervasive (prevalent) feature of journalism and of journalists' interaction with government. Having access to relatively less information than other reporters on account of one's reporting is so commonplace that to allow the Sun to proceed on its retaliation claim addressing that condition would "plant the seed of a constitutional case" in "virtually every" interchange between public official and press. This ruling agrees with 2005 federal district court decision in Youngstown Publishing Co. v. McKelvey. In this case, a judge held a no-comment policy issued in 2003 by McKelvey, then mayor of Youngstown, OH, 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 not otherwise 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 no-comment policy does not impede the Business Journal from engaging in a constitutionally protected activity, and Plaintiffs cannot establish this element of their First Amendment retaliation claim." In 2007, however, in a slightly different scenario, a federal judge held in Citicasters Co. v. Finkbeiner the mayor of Toledo, OH, could not exclude a specific radio reporter from attending the mayor's press conferences that are open generally to all journalists. Judge Carr reasoned a press conference is a public event, in contrast to cases of Baltimore Sun v. Ehrlich and Youngstown Publishing Co. v. McKelvey in which reporters were denied private interview access and/or direct comments to their questions. But in the 2021 case John K. MacIver Institute for Public Policy v. Evers, 7th District ruled the Wisconsin governor did not violate the 1A when his office barred reporters from a conservative think tank from accessing his press briefings. The think tank sued the Wisconsin governor back in 2019. The institute alleged the governor, Evers, barred the institute's news service from a press event and from its media list because of the organization's viewpoint. In its ruling, 7th Circuit noted the instate asked to attend a "limited-access" press event - an event not open to the general public or even to all journalists. The appellate court categorized the event as a nonpublic forum, which meant any restrictions on speech activities needed to be reasonable and viewpoint neutral. And the 7th Circuit ruled the criteria the governor used to determine media access - which among other things limited access to "organizations whose principal business is news dissemination" and favored media that avoid real or perceived conflicts of interest or entanglement with special interest groups - were reasonable and viewpoint neutral. Indeed, the appellate court pointed out the governor had also excluded a liberal think tank from its media list. Writing for 7th Circuit, Judge Rovner concluded "Protecting the right of small, upstart, and nonobjective media producers does not mean the Governor of Wisconsin must grant every media outlet access to every press conference. We cannot fathom the chaos that might ensue if every governor press event had to be open to any 'qualified' journalist with only the most narrowly drawn restrictions on who might be excluded. And no one's needs would be served if the government were required to allow access to everyone or no one at all." Viewed collectively these four cases suggest while government officials can refuse to grant one-on-one interview access to specific reporters and can refuse to give comments to specific members of the news media, they CANNOT selectively deny access to specific reporters from press conferences without having articulated reasonable and viewpoint-neutral criteria to explain their media-access policy. Box: A right to White House access? Recent years, two legal clashes emerged over journalists' access to the White House. 2018, Trump administration revoked CNN White House correspondent Acosta's credentials, which are often called a "hard pass" after he and President Trump tangled verbally during news conference. Then in 2019, Trump administration suspended for 30 days the credentials of Karem, chief White House correspondent for Playboy and a CNN political analyst, after Karem argued with a former WH aide at a Rose Garden event. In both instances, journalists sued. CNN's lawsuit argued the administration's actions violated Acosta's 1A right to report on the government and the administration had also violated Acosta's due process rights, under 5th Amendment, by revoking his credentials without warning. Fifth Amendment provides no person should be "deprived of life, liberty, or property, without due process of the law." In its lawsuit, CNN pointed to 1977 case Sherrill v. Knight - U.S. Court of Appeals for D.C. ruled in favor of reporter from Nation magazine who had been denied White House credentials. The appeals court reasoned that access to WH press facilities could not be "denied arbitrarily or for less than compelling reasons" U.S. District Court Judge Kelly sided with CNN in 2018 case, CNN v. Donald J. Trump. Kelly, though, didn't rule on the 1A issue. He ordered Acosta's pass returned in part because CNN was likely to prevail on its Fifth Amendment claim - Acosta hadn't received sufficient notice or explanation before his credentials were revoked or been given adequate opportunity to respond before they were. Karem's lawsuit was also successful on DUE PROCESS, not 1A, grounds. 2019, federal judge issued preliminary injunction forcing administration to reinstate Karem. And in 2020, U.S. Court of Appeals for D.C. upheld decision (Karem v. Trump). "We think Karem's due process claim is likely to succeed because nothing put him on notice 'of the magnitude of the sanction' - a month-long loss of his WH access, an eon in today's business - that the WH 'might impose' for his purportedly unprofessional conduct at the non-press-conference event" Similar to Sherrill and CNN cases, appellate court found Karem didn't have sufficient notice his behavior at the White House event, which wasn't a formal press conference, would result in a 30-day suspension. The Reporters Committee for Freedom of the Press called the Karem decision a win for press rights. In a amici curiae (friends of the court) brief filed on behalf of Karem by the Reporters Committee and a coalition of 44 media organizations, media coalition argued "Suspending a journalist's hard pass and denying that journalist access to the WH press facilities deprives the public of reporting about presidents and their administrations and may only occur when stringent and exacting 1A and due process requirements are satisfied"

FOIA: Agency Records One can write an open-records law in two basic ways: 1. Declare the following kinds of records are to be ... for p... ... and then list the kinds of records that are o... 2. Proclaim ... government records are open for public inspection ... the following kinds of records and then list the ... (Congress approved the SECOND kind of law in 1966 and went into effect in 1967 - law has been amended several times with the last substantial changes in 2016) What is an Agency? -The U.S. FOIA gives any person access to all records kept by all federal agencies, unless the information falls within one of nine exemptions -An agency has been defined as "Any ... department, m... department, ... c..., ...-c... c..., or other establishment in the ... branch of government [including ... o... of the ...], or any in... ... agency" -The law governs records held by agencies in the ... branch of government and ALL ... r... agencies like the FTC, FAA, Nuclear Regulatory Commission, Social Security Administration, SEC The law does not cover records held by ... or the ... c...!!! And some agencies associated with the ... branch also fall outside the purview of this law Example: U.S. Court of Appeals for D.C. found the Council of Economic Advisers, who works closely with president on economic matters was not covered by FOIA because they exist solely to advise/assist the president and makes no ... of its own! It has no r... power! It cannot issue r.../... Though the FOIA governs some operations in the ... o... of the president, the law does not reach the president's im... p... s... or units in the ... office whose sole function is to ... and ... the president Some quasi-governmental entities raise interesting questions as to whether they are subject to FOIA -Smithsonian Institute - not a government agency and ... subject to FOIA though the vast majority of its budget comes from taxpayer dollars! After financial scandals and spending problems, a bill was introduced to Congress to make it a government agency. To address concerns and fend off legislation, Smithsonian responded by holding its first public board meeting. Also adopted new policy, patterned after FOIA to allow disclosure of more records -U.S. Postal Service ... considered a government agency and features its own ... website; Amtrak (National Railroad Passenger Corporation) is a ... c... operated f... p... and not technically a ... a..., BUT IT TOO is subject to FOIA (Rail Passenger Service Act) -Corporation for Public Broadcasting - a ..., n... c... created by Congress ... subject to FOIA What is a Record? Congress did not specify the p... c... of a record in the FOIA. Records could be paper documents, email and other computer-generated material. But it also includes ..., and even ...-... objects like evidence in a criminal prosecution -FOIA statute provides that a record contains information maintained by an agency in any f..., including an ... f... -OPEN Government Act of 2007 expanded the description of a record to also include information maintained for an agency by an entity under ... c... - This change is key - it means records held by ... ... c... working for the ... are ALSO subject to FOIA requests What is an Agency Record? Agency and record have both been defined under the law. But an "Agency Record" is not as simple as ... the definition of these two terms. Courts have established the following definition of an agency record: -If the record is either ... or o... by an agency, and the record is under agency ... at the time of the request, it is very likely an agency record -If the agency has ... the document but does not ... or ... it, it is not an agency record -If the agency merely ... the document but has not ... it, it might be an agency record or it might not be a. If the agency has come into ... of the document as part of its o... d..., it is probably an agency record b. If the agency just happens to ... the document, it is probably not an agency record Court also look to four factors determining if an agency exercises sufficient "control" over a document to render it an "agency record" 1. The ... of the document's creator to r... or r... ... over the records 2. The ability of the agency to ... and ... of the record as it sees fit 3. The extent to which agency personnel have ... or ... upon the document 4. The degree to which the document was integrated into the agency's ... s... or f... -DOJ argued in long-running dispute with public-interest group, Judicial Watch, that WH v... l... held by Secret Service are not subject to disclosure under FOIA -2013, U.S. Court of Appeals for D.C. ruled in Judicial Watch v. Secret Service that White House l... aren't ... ... and thus aren't subject to FOIA. "Congress made clear it did not want documents like the a... c... of the President and close advisors to be subject to disclosure. Granting Judicial Watch's request for certain v... records, could effectively disclose the contents of those c..." -2nd Circuit agreed with D.C. Circuit's ruling. In Doyle v. U.S. Department of Homeland Security, 2nd Circuit ruled President Trump's v... l... at the White House and his Mar-a-Lago residence in Florida weren't ... ... subject to FOIA requests

Agency Records One can write an open-records law in two basic ways. 1) Declare the following kinds of records are to be accessible for public inspection and then list the kinds of records that are open. 2) Proclaim that all government records are open for public inspection except the following kinds of records and then list the exemptions. Congress approved the second kind of law in 1966 and it went into effect in 1967. The law has been amended several times with substantial changes enacted in 1974, 76, 86, 96, 2002 (Homeland Security Act adoption), 2007, 2016. What is an Agency? The U.S. FOIA gives any person access to all records kept by all federal agencies, unless the information falls into one of 9 categories of exempted material. An agency has been defined: "Any executive department, military department, government corporation, government-controlled corporation, or other establishment in the executive branch of government (including executive office of the president), or any independent regulatory agency" The law governs records held by agencies in the executive branch of government and all the independent regulatory agencies like the Federal Trade Commission (FTC), the Federal Aviation Agency, Nuclear Regulatory Commission, Social Security Administration, Securities and Exchange Commission. The law does not cover records held by Congress or the federal courts. Some agencies associated with the executive branch also fall outside the purview of this law. Example: 1985, U.S. Court of Appeals for D.C. ruled the Council of Economic Advisors, works closely with president on economic matters, not covered by law because exists solely to advise and assist the president and makes no policy of its own. The agency has no regulatory power; it cannot issue rules or regulations. Though FOIA does govern some operations in the executive office of the president, the law does not reach "the president's immediate personal staff or units in the executive office whose sole function is to advise and assist the president" A couple quasi-governmental entities raise interesting questions as to whether they are agencies subject to FOIA. The Smithsonian Institute in D.C., not a government agency and not subject to FOIA, though the vast majority of its budget comes from taxpayer dollars. After financial scandals and spending problems rocked museum, however, a bill was introduced to Congress in 2008 to make it a government agency. To address these concerns and fend off legislation, Smithsonian responded by holding what the NYT described as its "first public board meeting in its 162-year history as part of its new commitment to openness and accountability" Smithsonian also formally adopted new policy, patterned after FOIA, to allow disclosure of more records. In contrast to Smithsonian, U.S. Postal Service is considered a government agency and features its own FOIA website. Although Amtrak (National Railroad Passenger Corporation) is a private corporation operated for profit and not technically a government agency, it TOO is subject to FOIA under provisions of the Rail Passenger Service Act. On other hand, Corporation for Public Broadcasting, a private, nonprofit corporation that was created by Congress in 1967, not subject to FOIA. What is a Record? Congress did not specify the physical characteristics of a record in the FOIA. Records are paper documents, email and other computer-generated material. But the term "records" also includes films, tapes and even 3-d objects such as evidence in a criminal prosecution. The FOIA statute provides a record includes information "maintained by an agency in any format, including an electronic format" Importantly, the OPEN Government Act of 2007 expanded the description of a record to also include information "maintained for an agency by an entity under government contract" This change is key: It means records held by outside private contractors working for the government are subject to FOIA requests. What is an Agency Record? "Agency" has been defined under the law; so has "record." What is an agency record? It is not unfortunately, simply a combination of the definition of these two terms. In this case the whole, the term "agency record" involves a good deal more than the sum of its parts. Courts have established the following definition of an agency record: è 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. If the agency has created the document but does not possess or control it, it is not an agency record. è 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 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. Courts have also generally looked to four factors to determine if an agency exercises sufficient "control" over a document to render it an "agency record": 1. The intent of the document's creator to retain (keep) or relinquish (give up) control over the records 2. The ability of the agency to use and dispose of the record as it sees it 3. The extent to which agency personnel have read or relied upon the document 4. The degree to which the document was integrated into the agency's record system or files The Justice Department argued in long-running dispute with public-interest group, Judicial Watch, that White House visitor logs held by Secret Service are not subject to disclosure under FOIA. 2013, U.S. Court of Appeals for D.C. ruled in Judicial Watch v. Secret Service that White House logs aren't agency records and thus aren't subject to FOIA. "Congress made clear it did not want documents like the appointment calendars of the President and his close advisors to be subject to disclosure under FOIA. Granting Judicial Watch's request for certain visitors records, however, could effectively disclose the contents of those calendars." 2020, 2nd Circuit agreed with D.C. Circuit's ruling in Judicial Watch case. In Doyle v. U.S. Department of Homeland Security, 2nd Circuit ruled President Trump's visitor logs at the White House and his Mar-a-Lago residence in Florida weren't agency records subject to FOIA requests. "At stake here is the president's constitutional prerogative of maintaining secrecy as it relates to confidentiality of his conversations and correspondence."

Ethics and Privacy Professional communicators need to remember liability in a private facts case is usually determined by a judge or jury asking questions on some fairly e... concepts: Was the material ... ... to a ... ...? Was the material of a ... ... ...? -The law is not carved in stone and can change as p... s... change! Decisions by judges and juries usually reflect ... ... - this is why people who work in the mass media need to start asking more questions: what are the ethical implications of revealing this personal information? Good editors agree the ... and s... of the ... should always be considered. But these ... and s... should never be used as a reason to deny the public information that has ... ... ...! -The decision on whether to publish/broadcast a story will always be a judgment call that must be made thoughtfully and carefully. Too many journalists are reluctant to make this call - they declare their job is to simply ... the ... not to make ...! This is called the sewer pipe school of journalism (what goes in one end of sewer pipe comes out other end with little change) -But today people in mass media know journalists make ... every day! Journalism is not now nor ever will be a purely ... activity Society of Professional Journalists ethics code Gathering and reporting information may cause harm and discomfort. Pursuit of news is not a license for ... Show good taste, avoid pandering to l... c... (relevant when considering whether to publish private facts) The courts and public will continue supporting endeavors of press in privacy actions so long as there is some assurance journalists are willing to ask the question, Is there ... ... ... in this story? -This is primarily an ... issue - but if journalism pursues a reckless abandon, it could become a defining ... question too Recounting the Past If an individual is in the public eye, revelations about their private life are usually fair game for press. But lawsuits by individuals who were once in the public eye, but have retreated to a ... ... of ... out of the ... ... are quite common -Litigants will argue the passing of ... dims the ... ..., a person stripped of a right to privacy because of that notoriety regains at least some of that protection after an indeterminate ... of ... Two kinds of cases that occur a. Media that ... the past (h...) "On this day in 1990, Mary Beth Ellroy was convicted of killing her two-week-old baby and sentenced to 15 years in prison." These kinds of lawsuits are never ...! -Book on Kallinger's life and crimes published 8 years after crime spree, one of victims sued - case failed because facts revealed were not ... but ..., and even if they were ... were of ... ... to the public (lapse of ... did nothing to insulate the plaintiff from such publicity) b. "W... ... ... ..." kinds of stories -More problematic -A report that film star Sid Feldman was accused in 1995 by former wife of possessing child porn is again retelling history. But, added sentence "Today, Feldman is selling real estate in Dade County, FL." pushes the report beyond history -Some courts have ruled they are permissible, so long as report was not designed to purposely ... or ... the plaintiff. -But other judges are less ... of such publicity and will sometimes ask question, "What is the purpose of tying Feldman's current job with these accusations from the past?" To defend such a suit, press needs a g... ...! (if running for public office, ran photographic studio taking pictures of children, or arrested today for child porn - all supply rationale needed for tying past to present) (BUT just recording he is selling real estate might not convince court of story's immunity) Most important question any journalist should ask when preparing to publish a story is ...? ... is this information being published? If good ..., most judges bend backwards to protect press Embarrassing details about a person's private life cannot be publicized simply to ... or t... audiences.

Ethics and Privacy Journalists, bloggers, other professional communicators need to remember liability in a private facts case is usually determined by a judge or jury asking questions about some fairly ELASTIC concepts. Was the material highly offensive to a reasonable person? Was the material of legitimate public concern? The law in this area isn't carved in stone and could change as public sentiments change. If nothing else, in the long term, decisions by judges and juries usually reflect public opinion. And this is why people who work in the mass media need to begin to ask more questions too - especially, what are the ethical implications of revealing this personal info? When it comes to privacy, good editors agree the feelings and sensibilities of the subject of the story should ALWAYS be considered. But at the same time, these feelings and sensibilities should never be used as a reason to DENY the public info that has legitimate public concern. The last three words are key, legitimate public concern! The decision on whether to publish/broadcast a story will always be a judgment call that must be made thoughtfully and carefully. Too many journalists are reluctant to make this call. Instead, they declare their job is simply to report the news, to pass along whatever they discover. Journalists aren't supposed to make judgments, they argue. Some people call this the sewer pipe school of journalism: What goes in one end of a sewer pipe comes out the other end with little change. But today people in the mass media, and even members of their audience, know that journalists make judgments every day! What stories should be covered? Who should be quoted? How should the story be played? Journalism is not now nor ever has been a purely objective activity! It is worth nothing the ethics code of the Society of Professional Journalists (SPJ), organization of reporters and editors, reminds reporters to 'recognize that gathering and reporting info may cause harm and discomfort. Pursuit of the news is not a license for arrogance.' The SPJ's ethic code also instructs journalists to 'show good taste. Avoid pandering to lurid curiosity.' Such ethical considerations are CLEARLY relevant when considering whether to publish private facts. The courts and the public will continue to support the endeavors of the press in privacy actions so long as there is some assurance journalists are willing to ask question, Is there legitimate public concern in this story? At present, this is primarily an ethical issue. But if journalism is pursued with the kind of reckless abandon that is common today at a few media outlets, it could one day become a defining legal question too. We must constantly remember the words of jurist Learned Hand. Liberty rests in the hearts and minds of the people. When it dies there, no court or constitution can revive it. Recounting the Past If an individual is in the public eye, revelations about their private life are normally fair game for the press. However, lawsuits by individuals who were once in the public eye, but have retreated to a quiet life of solitude out of the public spotlight, are fairly common. These litigants usually argue that the passing of time dims the public spotlight and that a person stripped of a right to privacy before of their notoriety regains at least some of that protection after an indeterminate period of time. There are at least two kinds of cases that usually occur. First is simplest to describe: news story, book, TV documentary that simply recounts the past. In other words, history. "On this day in 1990 Mary Beth Ellroy was convicted of killing her two-week-old baby and sentenced to 15 years in prison." These kinds of lawsuits are never successful. Typical is a decision by the New Jersey Supreme Court in a case involving a book that recounted a crime spree that occurred eight years earlier. Joseph Kallinger and his son were apphrended by police in 1975 after their criminal rampage that included killing, robbing, and raping. In 1983, professor of criminal justice at City University of NY published a book about Kallinger's life and crimes. One of Kallinger's victims sued, arguing replaying this tragedy in public print was traumatic and disturbing and would be highly offensive. The court agreed with that assessment but ruled the case failed because the facts revealed weren't private but public, and 'even if they were private, they are of legitimate concern to the public.' The lapse of time did nothing to insulate the plaintiff from such publicity. The facts were taken from the public trial record in the case, and the court noted the Supreme Court ruling in Cox v. Cohn was not limited to contemporaneous (concurring) events. The second kind of story is a bit more problematic. A report that film star Sid Feldman was accused in 1995 by his former wife of possessing child pornography is again retelling history. But the added sentence, "Today, Feldman is selling real estate in Dade County, Florida," pushes the report beyond history. Some courts have ruled "Where are they now" kinds of stories are permissible, so long as the report wasn't designed to purposely embarrass or humiliate the plaintiff. But other judges are less tolerant of such publicity and will sometimes ask the question, What is the purpose of tying Feldman's current job with these accusations from the past? To defend such a suit, the press needs a good answer! If Feldman were running for public office, if he ran a popular photographic studio that specialized in taking pictures of children, if he were arrested today for selling child pornography - all of these would supply the rationale for tying the past to the present. But simply reporting that he is selling real estate might not convince the court such a story should be immune from suit. Perhaps the most important question any journalist can ask when preparing to publish a story is, why? Why is this info being published? If there is a good reason, most judges will bend backwards to protect the press. But without a good reason, the legal terrain can get a lot more complicated. Summary It is an IOP to publicize private info about another person's life if the publication of info would be embarrassing to a reasonable person and the info is not of a legitimate public interest/concern. To publicize means to communicate the info to a LARGE number of people. There is no liability for giving further publicity to info that is already considered public. The press is free to report even embarrassing and sensitive matters contained in public records. The info that is publicized must be considered offensive to a reasonable person; the law doesn't protect hypersensitive individuals. Courts use many strategies to determine whether info has legitimate public concern. Stories that are of GREAT INTEREST have legitimate public concern (LPC). Stories about both voluntary and involuntary public figures are normally considered of LPC. When private info is published or broadcast, it is important a connection exists between the revelation of the embarrassing private info and the newsworthy aspects of the story! Embarrassing details about a person's private life cannot be publicized simply to amuse or titillate (stimulate/excite) audiences. News stories that recount past events - including embarrassing details of an individual's life - are normally protected from successful privacy suits. However, courts will usually insist on a good reason for relating these embarrassing past events to an individual's current life or work.

Faced with Supreme Court rulings that blocked the use of r... o... to stop p... coverage of the criminal justice system, judges in the 1980s began to c... j... p... and b... a... to r... to deny reporters information they believed might be p... to the defendant's f... t... r...! The press challenged these closures and as with r... o..., ... courts found that such closures FREQUENTLY violated the ... ...! Closed Proceedings and Sealed Documents When jurors were being selected for the murder trial of Holmes (CO), the process occurred in an o... c... with members of the p... and ... present! -Both the prosecution and defense attorneys had requested the jury selection process be c...; they feared the ...'s presence would cause some jurors to provide dishonest answers during voir dire -Judge rejected the motion to c... the jury selection process. "Rather than hinder the effectiveness of jury selection, o... and the w... e... of the ... will increase s... and enhance the r... and f... of the process! In the court's view, s... not d... is the appropriate disinfectant here (citing Justice Brandeis)" Judge forcefully made point that o... a... to j... p... - as opposed to c....-door courtrooms - helps to ensure f... and in... in the justice system, with the ... playing a w... role on behalf of the ...! Open Courts and the Constitution Press-Enterprise v. Riverside Superior Court (1986) U.S. Supreme Court ruled there was a right under ... law and the ... ... to the U.S. Constitution for the public and press to attend a ... t...! (1980) Six years later (Press-Enterprise), Court extended this right of a... to other j... p... and r...! Justices fashioned a complicated test a judge must apply before can c... c... off a... to the judicial process! 1. Judge must determine whether the proceeding or document is p... o... or c...! -A hearing that is p... o... is one that is n... o... to the p... and ...; to determine whether proceeding or document is p... o..., judge must ask two questions 1. Whether this kind of hearing or document (if court record) has t... and h... been o... to the ... and ... OR 2. Whether p... and ... a... to this hearing (or document) will play a p... r... in the f... of the judicial system This two-part test for deciding if a proceeding/document is p... o... is sometimes called the history-and-logic test/experience-and-logic test (because the test asks courts to consider if there is a h... ex... of o... surrounding the proceeding/document and whether the logic behind having it o... relates to the p... f... of the particular process in question) While the question of p... of a... seems simple enough, sometimes it isn't! Example: U.S. District Court in IL ruled there was no p... a... to the names and addresses of jurors in a criminal trial because this information had not been h... or t... a..., and a... to this information was not tied to the proper f... of the judicial process VS. -3rd Circuit ruled in the opposite way, these names had been h... accessible -In an earlier era, when communities were small, everyone generally knew the names of jurors in a criminal trial. And for nearly a millennium before the 1970s, the withholding of jurors' names was "very rare." If the judge determines this kind of hearing has t... been o... OR that allowing the press and public to attend the hearing will have a p... i... on the judicial process, then they must declare the hearing to be p... o... In addition, courts have found the right of access applies to ... and ... trials, the jury selection process, p... hearing and p...-trial motions If the proceeding or document is p... o..., the burden shifts to the d... or g... to convince the court there is g... r... to c... the proceeding or s... the document 2. Advance an o... i... that is l... to be h... if the proceeding remains open or the court permits access to the court document Examples of such i... include the right to a fair trial for defendant or protection of a witness' privacy. Then the advocate of closure must 2. Prove to the court if the hearing or document is open to the press and public, there is a "s... p..." this i... will be harmed Example: The jury will be prejudiced, the privacy of the witness will be invaded The words "s... p..." are important; this is a h... th... for the advocate of closure to meet! A showing there is a "chance" or even "likelihood" of h... is i... to support a motion for closure! If the advocate of closure proves there is a s... p... that such harm may occur, then the judge must... 3. Consider whether there are r... a... to closure that might solve the problem Example: A thorough v... ... or c... of ... would reduce the probability of p...! Closure of the hearing or sealing the document should be the l... o..., not the f... o... considered by the court If there are no v... a..., then it is the responsibility of the judge to 4. N... t... the closure so there is an a... m... of in... with the rights of the ... and ... to attend the hearing or see the document A p... h... on evidence might include many is... beyond the s... is... that could harm the defendant. The court must close only that portion dealing with s... is...! Or the court must exclude the ... and ... from only THAT portion of a witness' testimony that might cause e... or h..., not the e... testimony! 5. Make e... f... to support this decision and prepare a thorough f... r... relating to the closure order, a r... that can be evaluated by an ... c...! This final element is important. ... c... want to be certain the ... j... carefully/thoughtfully considered options other than closure as a solution to the problem Example: GA Supreme Court voided an order closing the pretrial phase of a sensational murder trial because the judge had st... si... that alternatives to closure were considered and found to be insufficient. "A closure order must f... art... the alternatives to closure and the r... why the alternatives would not protect the movant's rights" The right of access to a p... o... judicial proceeding or document is not a..., according to the Press-Enterprise test. It is only a q.../l... right of access - one that can be o... and d... if each of the five steps is satisfied! Examples of what a court must do before it may c... c... a proceeding -R. Kelly was charged with multiple accounts of CP stemming from charges that he made a videotape of sexual acts between himself and a minor -After years of continuances, Kelly's jury trial began (2008). The trial ended in acquittal, when the jury found Kelly not guilty. Prior to the trial, a pretrial motion was made to allow evidence of other crimes, which was filed under seal -The trial court then held pretrial hearings, which were closed to the public. A number of media companies filed a motion to intervene in the case and obtain access to the pretrial hearings. On appeal, the appellate court used the h... and l... test, ruling the pretrial hearings in question were "not ones that have been h... o... to the public or which have a purpose and f... that would be furthered by disclosure." -Kelly's (2021) NY trial for one charge of racketeering among and eight counts of violating the Mann Act was also closed to the public. U.S. District Judge Donnelly ruled the media and members of the public wishing to attend the trial must watch via a video feed from two overflow courtrooms due to concerns over Covid. Numerous media organizations asked the judge to allow a pool of reporters to attend the trial in-person, but the judge ruled Covid protocols wouldn't allow it -A trial in which the defendant was charged with providing material support to ISIS. Federal district court in NY granted the government's request to close the courtroom when undercover officers were expected to testify The court held the p... of a... under the ... ... was overcome by the government's showing of a s... i... in protecting the i... of the officers To ensure the closure was n... t..., the court held audio of the testimony be livestreamed, any exhibits used during the testimony be made available to the public and a pool reporter be permitted to be present for the officers' testimony -A judge in NY denied access to a pretrial hearing in the sexual assault and rape case against Weinstein. Multiple media organizations objected, citing the Press-Enterprise test in their favor -The judge rejected the motion, finding that banning press and public access to the courtroom was "the o... m... available to avoid the tainting of the jury pool" -Weinstein made a similar motion regarding the jury selection process. W's lawyers requested to privately question jurors one by one for voir dire. The motion claimed the VD process already conducted allowed the defense to uncover that (1) some jurors had not been candid in their responses; (2) at least one juror had expressed the ulterior financial motive for serving on W's jury; (3) a number of jurors were victims of or had exposure to sexual assault; (4) nearly all jurors had heard about the case. The judge in the case quickly and decisively dismissed the motion Almost all courts have ruled the Press-Enterprise test applies to d... as well as to h...! Courts have ruled it applies to e... and d... used during the course of a trial, mo..., af... and other categories of c... r... Summary of the Press-Enterprise Test for closure of p... o... j... p... and d... 1. The party seeking closure (d... or the g..., though sometimes it is ...!) must advance an o... i... that is likely to be harmed if the proceeding or document is open 2. Whoever seeks the closure must demonstrate there is a "s... p..." this i... will be harmed if the proceeding or document remains opens 3. The trial court must consider r... a... to closure 4. If the judge decides that closure is the o... reasonable s..., the closure must be n... t... to restrict no more access than is a... n...! 5. The trial court must make adequate findings and put them into the r... to support the closure decision

Chapter 12: Free Press-Fair Trial: Closed Judicial Proceedings Faced with Supreme Court rulings that blocked the use of restrictive orders to stop press coverage of the criminal justice system, judges in the 1980s began to close judicial proceedings and block access to records to deny reporters information they believed might be prejudicial to the defendant's fair trial rights. The press challenged these closures and, as with the restrictive orders, appellate courts found that such closures frequently violated the 1A! Closed Proceedings and Sealed Documents When jurors were being selected in 2015 for the murder trial of Holmes in CO, the process occurred in an open courtroom with members of the public and media present. Both the prosecution and defense attorneys representing Holmes, who accused (and later convicted) of a mass shooting at a movie theater, had requested the jury selection process be closed. They apparently feared the media's presence would cause some jurors to provide dishonest answers during voir dire. Judge Samour Jr. rejected the motion to close the jury selection process. He reasoned "rather than hinder the effectiveness of jury selection, openness and the watchful eye of the media will increase scrutiny and enhance the reliability and fairness of the process. In the court's view, sunshine, not darkness, is the appropriate disinfectant here." In paraphrasing late Supreme Court Justice Brandeis' aphorism that "sunlight is said to be the best of disinfectants," Samour forcefully made the point open access to judicial proceedings - as opposed to the closed-door courtrooms - helps to ensure fairness and integrity in the justice system, with the media playing a watchdog role on behalf of the public. Or to add another maxim: "Justice must not only be done, it must be seen to be done. Without the appearance as well as the fact of justice, respect for the law vanishes in a democracy." Open Courts and the Constitution 1980, U.S. Supreme Court ruled there was a right before under common law and the First Amendment to the U.S. Constitution for the public and press to attend a criminal trial. Six years later, the U.S. Supreme Court extended this right of access to other judicial proceedings and records: Press-Enterprise v. Riverside Superior Court Justices fashioned a complicated test a judge must apply before they can constitutionally close off access to the judicial process 1. The first thing a judge must determine if the closure issue arises is whether the proceeding or document is presumptively open or closed! A hearing that is presumptively open, for example, is one that is normally open to the public and the press. To determine whether the proceeding or document is presumptively open, the judge must ask two questions 1. Whether this kind of hearing (or document, if access to a court record is involved) has traditionally and historically been open to the press and public, or 2. Whether public and press access to this hearing will play a positive role in the functioning of the judicial system This two-part test for deciding if a proceeding or document is presumptively open is sometimes called the history-and-logic test or the experience-and-logic test. Because the test asks courts to consider if there is a historical experience of openness surrounding the proceeding or document and whether the logic behind having it open relates to the positive functioning of the particular process in question. While the question of presumptiveness of access seems simple enough (Was the hearing or record historically open? Will access play a positive role in the functioning of the judicial system?), sometimes it is not! Example: 2007, U.S. District Court in IL ruled there was no presumptive access to the names and addresses of jurors in a criminal trial because this information had not been historically or traditionally accessible, and access to this information was not tied to the proper functioning of the judicial process. 20 months later, 3rd Circuit ruled in the OPPOSITE way, saying these names had been historically accessible. In an earlier era, the court said, when communities were small, everyone generally knew the names of jurors in a criminal trial. And for nearly a millennium before the 1970s, the withholding of jurors' names was "very rare." If the judge determines this kind of hearing has traditionally been open, OR that allowing the press and public to attend the hearing will have a positive impact on the judicial process, then they must declare the hearing to be presumptively open. In addition, courts have found the right of access applies to civil and criminal trials, the jury selection process, pretrial hearing and post-trial motions. If the proceeding or document is presumptively open, the burden shifts to the defendant or the government to convince the court there is good reason to close the proceeding or seal the document. The party seeking closure must: 1. Advance an overriding interest that is likely to be harmed if the proceeding remains open or the court permits access to the court document Examples of such interests include the right to a fair trial for the defendant or protection of a witness's privacy. Then the advocate of closure must 2. Prove to the court that if the hearing or document is open to the press and public, there is a substantial probability this interest will be harmed, the jury will be prejudiced or the privacy of the witness will be invaded, for example The words "substantial probability" are important; this is a high threshold for the advocate of closure to meet! A showing there is a "chance" or even "likelihood" of harm is insufficient to support a motion for closure! If the advocate of closure proves there is a substantial probability that such harm may occur, then the judge must... 3. Consider whether there are reasonable alternatives to closure that might solve the problem. Example: A thorough voir dire or change of venue would reduce the probability of prejudice. Closure of the hearing or sealing the document should be the last option, not the first option, considered by the court If there are no viable alternatives, then it is the responsibility of the judge to 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. A pretrial hearing on evidence might include many issues beyond the single issue that could harm the defendant. The court must close only that portion of the hearing dealing with the single issue. Or the court must exclude the press and public from only that portion of a witness's testimony that might cause embarrassment or humiliation, not the entire testimony! Finally, the trial judge must 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. This final element is important. Appellate courts want to be certain the trial judge thoughtfully and carefully considered options other than closure as a solution to the problem Example: The Georgia Supreme Court voided an order closing the pretrial phase of a sensational murder trial because the judge had stated simply that alternatives to closure were considered and found to be insufficient. "A closure order must fully articulate the alternatives to closure and the reasons why the alternatives would not protect the movant's [the party seeking closure] rights," the court ruled. In summary, the right of access to a presumptively open judicial proceeding or document the Press-Enterprise test is not absolute. Rather, it is only a qualified or limited right of access - one that can be overcome and denied if each of the five rigorous steps is satisfied Examples of what a court must do before it may constitutionally close a proceeding... Example: 2002, R. Kelly was charged with multiple accounts of child pornography stemming from charges that he made a videotape of sexual acts between himself and a minor. After close to 6 years of continuances, Kelly's jury trial began in 2008. The trial ended in acquittal, when the jury found Kelly not guilty. Prior to the trial, a pretrial motion was made to allow evidence of other crimes, which was filed under seal. The trial court then held pretrial hearings, which were closed to the public. A number of media companies filed a motion to intervene in the case and obtain access to the pretrial hearings. On appeal, the appellate court used the history and logic test, ruling the pretrial hearings in question were "not ones that have been historically open to the public or which have a purpose and function that would be furthered by disclosure." Kelly's 2021 NY trial for one charge of racketeering based on sexual exploitation of children, kidnapping and forced labor, and eight counts of violating the Mann Act, which prohibits transporting anyone across state lines for prostitution, was also closed to the public. U.S. District Judge Donnelly ruled the media and members of the public wishing to attend the trial must watch via a video feed from two overflow courtrooms due to concerns over Covid. Numerous media organizations asked the judge to allow a pool of reporters to attend the trial in-person, but the judge ruled Covid protocols wouldn't allow it 2018, United States v. Alimehmeti, a trial in which the defendant was charged with providing material support to ISIS, a federal district court in NY granted the government's request to close the courtroom when undercover officers were expected to testify. The court held the presumption of access under the 1A was overcome by the government's showing of a substantial interest in protecting the identities of the officers. To ensure the closure was narrowly tailored, the court held audio of the testimony be livestreamed, any exhibits (public display) used during the testimony be made available to the public and a pool reporter be permitted to be present for the officers' testimony. In 04/2019, a judge in NY denied access to a pretrial hearing in the sexual assault and rape case against movie mogul Weinstein. Multiple media organizations objected, citing the Press-Enterprise test in their favor. The judge rejected the motion, finding that banning press and public access to the courtroom was "the only means available to avoid the tainting of the jury pool" 2020, Weinstein made a similar motion regarding the jury selection process. W's lawyers requested to privately question jurors one by one for voir dire. The motion claimed the VD process already conducted allowed the defense to uncover that (1) some jurors had not been candid in their responses; (2) at least one juror had expressed the ulterior financial motive for serving on W's jury; (3) a number of jurors were victims of or had exposure to sexual assault; (4) nearly all jurors had heard about the case. The judge in the case quickly and decisively dismissed the motion Almost all courts have ruled the Press-Enterprise test applies to documents as well as to hearings! Courts have ruled it applies to evidence and documents used during the course of a trial, motions, affidavits and other categories of court records. Press-Enterprise Test for the closure of presumptively open judicial proceedings and documents 1. The party seeking closure (either the defendant or the government, though sometimes it is both!) must advance an overriding interest that is likely to be harmed if the proceeding or document is open 2. Whoever seeks the closure must demonstrate there is a "substantial probability" this interest will be harmed if the proceeding or document remains opens 3. The trial court must consider reasonable alternatives to closure 4. If the judge decides that closure is the only reasonable solution, the closure must be narrowly tailored to restrict no more access than is absolutely necessary! 5. The trial court must make adequate findings and put them into the record to support the closure decision

Bench-Bar-Press Guidelines (These are v... agreements!) Both r... o... and the c... of court proceedings are admittedly effective ways of stopping p... from reaching hands of potential ...! But they are equally dangerous in a representative democracy where information about how well g... is o... is fundamental to the success of the political system! The ..., the ..., and the ... in many states have found that c..., r..., and m... t... can be equally effective in protecting the rights of the ..., while at the same time far less damaging to the rights of the p...! J..., l.../a..., and j... have tried to reach a c... understanding of the problems of p... n... c... and offered suggestions as to how most of these problems might be resolved! These suggestions usually offered in the form of g... or r... to the p... and participants in the c... j... s...! Bench-bar-press guidelines normally suggest to l... ... o... certain kinds of info about a criminal suspect and a crime can be released with l... d... of h... to the trial process! Guidelines also suggest to j... the publication of certain kinds of info about a case can be h... to the ...'s chances for a f... t... without providing the public with useful or important information!: a. Confessions or stories about the confession that a defendant is said to have made b. Stories about the defendant's performance on a test, lie detector or similar device, and about the defendant's refusal to take such a test c. Stories about the defendant's past criminal record or that describe the defendant as a former convict d. Stories that question the credibility of witnesses and that contain the personal feelings of witnesses e. Stories about the defendant's character, associates, and personality f. Stories that tend to inflame the public mood against the defendant g. Stories that are published or broadcast before a trial that suggest, imply or declare that the defendant is guilty Guidelines often presented in very b... form, other times they encompass several pages of text -B-B-P guidelines have existed in some states for more than 50 years. In some communities, these guidelines work very well in managing the problems surrounding the ... p...-... t... dilemma! A spirit of c... exists between p..., c..., a... and l... e... personnel. In such communities, rare to find a r... o... or a c... courtroom! -BUT MOST COMMUNITIES AND STATES HAVE FOUND IT TAKES C... E... TO MAKE THE GUIDELINES WORK! -D... the guidelines is just the first step. If after the agreement is reached on the recommendations, the ..., ... and ... go their s... w..., the guidelines usually ... as a means of resolving the ... p...-... t... problems!

Bench-Bar-Press Guidelines Both restrictive orders and the closure of court proceedings are admittedly effective ways of stopping publicity from reaching the hands of potential jurors, but they are equally dangerous in a representative democracy where information about how well government is operating is fundamental to the success of the political system The bench, the bar and the press in many states have found that cooperation, restraint and mutual trust can be equally effective in protecting the rights of a defendant, while at the same time far less damaging to the rights of the people Judges, lawyers and journalists have tried to reach a common understanding of the problems of pretrial news coverage and have offered suggestions as to how most of these problems might be resolved. These suggestions are usually offered in the form of guidelines or recommendations to the press and to participants in the criminal justice system Bench-bar-press guidelines normally suggest to law enforcement officers certain kinds of information about a criminal suspect and a crime can be released and published with little danger of harm to the trial process. The guidelines also suggest to journalists that the publication of certain kinds of information about a case (Confessions or stories about the confession that a defendant is said to have made; Stories about the defendant's performance on a test, lie detector or similar device, and about the defendant's refusal to take such a test; Stories about the defendant's past criminal record or that describe the defendant as a former convict; Stories that question the credibility of witnesses and that contain the personal feelings of witnesses; Stories about the defendant's character, associates, and personality; Stories that tend to inflame the public mood against the defendant; Stories that are published or broadcast before a trial that suggest, imply or declare that the defendant is guilty) can be harmful to the defendant's chances for a fair trial without providing the public with useful or important information. The guidelines are often presented in a very brief form; at other times they encompass several pages of text Bench-bar-press guidelines have existed in some states for more than 50 years. In some communities, these guidelines work very well in managing the problems surrounding the free press-fair trial dilemma. A spirit of cooperation exists between the press, courts, attorneys and law enforcement personnel. In such communities, it is rare to find a restrictive order or a closed courtroom. BUT MOST COMMUNITIES AND STATES HAVE FOUND IT TAKES CONSIDERABLE EFFORT TO MAKE THE GUIDELINES WORK!!! Drafting the guidelines is only the first step. If, after agreement is reached on the recommendations, the bench, the bar and the press go their separate ways, the guidelines usually fail as a means of resolving the free press-fair trial problems Crime, especially violent crime, has become the focus of many segments of the American press. TV news is especially afflicted by this trend. But serious reporting on the criminal justice system remains in short supply, despite the importance to society of the tasks undertaken by the police, the prosecutors and the courts. Reporters dealing with the courts and the court system must be aware of the legal issues pertaining to covering trials. They should not be blinded to the sensitive mechanisms that operate in the courts to provide justice and fairness as they clamor for news. At the same time, they should not let the authoritarian aspects of the judicial system block their efforts to provide the information essential to the functioning of democracy Summary In some states, the press, attorneys and judges have agreed to try to solve the problems surrounding the free press-fair trial controversy through VOLUNTARY bench-bar-press agreements. Such agreements usually contain suggestions to all parties as to what information should/not be publicized about criminal cases. When the guidelines work, there is usually a cooperative, rather than a combative, spirit among the members of the press, the judiciary and the bar. These guidelines often reduce or eliminate the need for restrictive orders or closed hearings

Legal problems often arise when the press and criminal justice system intersect! These problems are the result of two seemingly conflicting constitutional rights: the right to a ... ... (guaranteed by the ... ...) and the right to a ... ... by an ... ... (guaranteed by the ... ...) If the press publishes/b-casts anything it chooses about a crime or a criminal suspect, isn't it possible readers/viewers will m... up their m... about the g.../... of the accused? And if they do, won't the members of the ... approach the case with p... either for/against the defendant? What will happen to the guarantee of a ... ...? BUT, if the court moves to restrict this p... by the ... ... to protect the integrity of the ... process, won't this interfere with the rights of the ...? What about the ... ...? Prejudicial Crime Reporting Americans' fascination with news about crime is not a r... f...! We've always found stories about crime and criminals alluring: -19th century - hangings were public spectacles, carnival-like atmosphere (well-attended) -1920s and 30s, state prisons would sometimes hold lotteries to distribute tickets to those who wanted to attend an execution -Today, 'true crime' and mystery novels are among most popular print genres, and dramas on crime and criminals usually rank among most popular TV shows ("CSI" "Law and Order") -Public's fascination with crime and justice system continues The news media, especially ... news, are also s... with stories about ... and the administration of ... ...! Many ... news producers salivate at prospect of another celebrity trial. Vying for the short attention span of many Americans, some members of press have few qualms on reporting stories that go beyond the ... of the case to include r..., their own o... about .../... and speculations from so-called experts who dwell beyond boundaries of actual c... p...! This quasi-news reporting as at the heart of the long-standing matter that is the ... ...-... ... controversy! This controversy, like news coverage on crime, dates to the early years of the republic! Many lawyers and judges argue it is extremely difficult if not impossible for a defendant to get a ... ... - a right guaranteed by the ... ... - when important segments of the press have already decided the defendant is ...! This kind of p... they say will surely influence members of the community who will ultimately sit on the ... to decide that defendant's .../...! Reporters and editors argue the influence of the press is s... e... in such arguments, regardless, the ... ... protects the press from g... in..., even if it occasionally acts irresponsibly! No one is arguing ... reporting about crime or criminals is a problem! While the heavy emphasis by the press on reporting is crime is regarded by most as m..., even the severest critics agree most stories are s... and f...! But potential problems arise in those instances when the press s... a community with stories about a ... c... or ... d...! Example: Recent high-profile cases involving s... news coverage a. The 2018 conviction (overturned) of Cosby b. The 2015 conviction of NFL player Hernandez. The type of trial that can produce extensive media coverage and cause concerns over the ability of a ... to receive a ... ... While the Hernandez trial was broadcast and streamed live on the Internet, the judge in the Cosby trial banned cameras in the courtroom and reporters had to turn off their cellphones to prevent coverage on social media. Reporters were warned violating these rules would face fines or even jail times. c. There were more than 2,400 TV news reports at the trial of Jodi Arias. And when celebrities like Cosby face sexual assault charges, the ... can be even greater, featuring a s... combination of rape and celebrity What kind of news creates the greatest danger of p...? [Endanger the ...'s rights by causing p... p... either before a ... is impaneled or while a ... is in process!] 1. C... or stories about the c... that a defendant is said to have made, which include even alluding to the fact there may be a ... The ... ... says a person does not have to t... against themselves! A ... given to the police can sometimes be r... before trial! People who are ... sometimes confess to the crime they are accused of committing! Example: The Innocence Project said f... confessions figured in 24% of convictions overturned by DNA evidence in 2012. The organization noted since DNA is available in just a fraction of all crimes, a much larger universe of e... convictions - and f... convictions -surely exists -People who are ... i..., ... i..., y... or ea... le... are the likeliest to be induced by police to c... according to research 2. Stories about the defendant's p... on a t... (such as a ...), ... d... or similar device, and about the defendant's r... to take such t... Many kinds of so-called s... or f... evidence, which may help police identify a suspect, are not ... as evidence at a trial often because not completely r...! Even ... evidence is not always 100% conclusive if they are not properly gathered/processed 3. Stories about the defendant's p... c... r... or that describe the defendant as a f... c... This information is n... p... at trial! Such "c..." evidence is generally ruled i...! It may seem entirely logical to some that when someone has committed 99 robberies and is again arrested for robbery, the accused probably did commit the crime. As a matter of fact, p... b... is i... in the c... trial for robbery. State must prove the defendant committed this robbery 4. Stories that question the c... of w... and that contain the p... f... of w... about p..., p..., v... or even j... 5. Stories about the defendant's c... (he/she loves to party), a... (he/she hangs around known syndicate mobsters), and p... (he/she attacks people on the slightest provocation and acts in erratic ways) 6. Stories that tend to i... the p... m... against the defendant Such stories include editorial campaigns that demand the ... of a suspect before sufficient evidence has been collected; person-on-the-street interviews concerning the g... of the defendant or the kind of p... that should be meted out after the accused is convicted; televised debates about the e... of the g... or i... of the defendant. All these kinds of stories put the ... in the hot seat as well as circulate vast quantities of m... 7. Stories that are published or broadcast ... a trial that suggest, imply, or flatly declare the defendant is ...! Example: Casey Anthony was charged with first-degree murder in the death of her daughter. ... and ... her trial, many people, including those in the mass media, opined she was ... The trial was carried live on cable networks and was the focus of daily commentaries by TV host Grace. But a jury found her ... ... of murder! Impact on Jurors That i... p... c... of a criminal case m... jeopardize the ... of the ... is generally a...! But whether it w... harm the ...'s ... ... r... remains more of an open question! There are those who argue vigorously any p... can result in a ... biased for/against the ...! There is a serious lack of ... that even i... p... c... of a particular case can have a n... i... on the ...! For nearly 60 years social scientists have attempted to prove/disprove this assumption with l... than g... s...! [No real jurors in actual trials for this research, law prohibits. Complicating the resolution of this problem is many scientists are beginning to believe people tend to remember far less than what they read/watch than has been traditionally assumed. Social scientists have ... to firmly establish the v... of the assumption that p... p... will seriously damage the ...'s ... ... rights!] Skilling v. United States (2010) -Decision...? Supreme Court weighed on this issue in 2010 ruling on appeal by Skilling, former chief executive of Enron, after his conviction of fraud When the Houston energy company failed, thousands in the community lost their jobs. Skilling's attorneys argued the conviction should be reversed; the ... in the trial was certainly p... because of "p... c... b... against those who oversaw Enron's collapse" Justice RBG wrote the presumption of ... p... only arises in e... c...! While there was certainly w... n... p... in Houston, Ginsburg made following points: 1. Four years elapsed between time Enron collapsed and trial. The s.../p... of p... had w...! 2. There was 4 million potential jurors in the area. "Given this l..., d... p... of p... ..., the suggestion 12 impartial individuals could not be empaneled is hard to sustain" 3. The ... that c... him also a... him of 9 related counts of insider training 4. ... had to fill out a lengthy questionnaire, drafted largely by Skilling's attorneys, and were then questioned individually "A... courts making a...-the-... a... of the media's impact on ... should be mindful their judgments lack on-the-spot comprehensions of the situations possessed by t... j..." Ginsburg's ruling plays a critical role in cases involving p... p... Example: Supreme Court of KS in the murder case of Kansas v. Longoria considered whether a trial court's denial of the defendant's motion for a change of venue due to extensive p... p... violated the defendant's ... ... right to a ... ... by an i... ... The KS high court wrote "defendants face a ... b... under the Skilling test - generally a defendant can obtain a change of venue only upon showing that p... has d... the j... p... e... or the courtroom proceedings more resemble a c... or a l... m..." The Supreme Court of Kansas identified seven factors under the Skilling test the courts could use to evaluate whether there is a pr... of pr... caused by p... p... 1. M... in... with actual courtroom proceedings 2. The ma... and t... of the media coverage (factual versus inflammatory coverage) 3. The s... and c... of the c... in which the crime occurred (smaller populations may make it less likely to receive an im... trial since there are fewer p... ... from which to choose) 4. The amount of t... e... between the crime and the trial 5. The ...'s v... 6. The impact of the c... on the c... 7. The effect, if any, of p... given to a c... or other "smoking-gun type of information" Example: Co-defendant's publicized decision to plead guilty to same crime Applying these factors in Longoria, the Supreme Court of KS concluded the defendant "established extensive media coverage and high level of community familiarity" BUT this wasn't enough to "give rise to a p... that he would not receive a f... t..." Must present evidence of a l...-m... mentality, and he failed to do so Some courts concentrate on a shorter list of four criteria from Skilling 1. The s... and c... of the c... in which the crime occurred 2. The c... of the media coverage 3. The t... of the media coverage (amount of t... elapsed between crime and trial) 4. The existence of m... in... with court proceedings When is a Juror Disqualified? The U.S. Constitution guarantees both criminal and civil litigants a right to a ... ... by an ... ..., with the ... ... safeguarding this right in c... cases! An impartial juror is one who is capable and willing to decide solely on the ... admitted to c...! This definition is over 200 years old and comes from famous trial of former U.S. VP Burr for treason An impartial juror is a person who can disregard his p...-... o... and k..., and in their place, render a verdict based only on the ... and r... of l... presented in c...! The fact that a juror may have p... k... of the facts of a case or p... o... about it before being impaneled as a juror doesn't d.. them from jury service! The keys are the ability and willingness to "set aside o...of-... information and to decide the case upon the e... presented at a t..."

Chapter 11: Free Press-Fair Trial - Trial-Level Remedies and Restrictive Orders Legal problems often arise when the press and the criminal justice system intersect! These problems are the result of two seemingly conflicting constitutional rights: the right to a free press guaranteed by the First Amendment and the right to a fair trial by an impartial jury guaranteed by the Sixth Amendment. If the press publishes and broadcasts anything it chooses about a crime or a criminal suspect, isn't it possible readers and viewers will make up their minds about the guilt or innocence of the accused? And if they do, won't the members of the jury (who are also readers and viewers) approach the case with prejudice either for or against the defendant? What will happen to the guarantee of a fair trial? But, if the court moves to restrict this publicity by the mass media to protect the integrity of the trial process, won't this interfere with the rights of the press? What about the 1A? The kinds of publicity that may damage the right to a fair trial and the various schemes adopted by the courts to try to minimize the impact of this publicity or restrict the flow of the kind of information. Prejudicial Crime Reporting Americans' fascination with news about crime is not a recent fetish. The people of this nation have always found stories about crime and criminals alluring. In the 19th century, hangings were public spectacles with a carnival-like atmosphere and were usually well attended. In the 1920s and 30s, state prisons would sometimes hold lotteries to distribute tickets to those who wanted to attend an execution. Today so-called true crime and mystery novels are among the most popular print genres, and dramas about crime and criminals, such as various versions of "Law and Order" and "CSI" usually rank among the most popular TV shows. In addition, the recent success of the "Serial" podcast demonstrates the public's fascination with crime and the justice system continues. The news media, especially TV news, are also saturated with stories about crime and the administration of criminal justice. Many TV news producers salivate at the prospect of yet another celebrity trial. In vying for the short attention span of many Americans, some members of the press have few qualms about reporting stories that go beyond the facts of the case to include rumors, their own opinions about guilt or innocence and speculations from scores of so-called experts who dwell beyond the boundaries of the actual courthouse proceedings. This quasi-news reporting of crime and the criminal justice system is at the heart of the long-standing matter that journalists and lawyers alike call the free press-fair trial controversy. This controversy like the news coverage of crime also dates to the early years of the republic. Many lawyers and judges argue it is extremely difficult or even impossible for a defendant to get a fair trial - a right guaranteed by the 6A - when important segments of the press have already decided the individual is guilty! This kind of publicity they say will surely influence members of the community who will ultimately sit on the jury that decides the defendant's guilt or innocence. Reporters and editors argue the influence of the press is seriously exaggerated in such arguments, and regardless, the 1A protects the press from government interference, even if it occasionally acts irresponsibly. No one claims that all reporting about crime or criminals is a problem. While the heavy emphasis by the press on reporting crime is regarded as misplaced by most observers, even the severest critics agree that most stories are straightforward and fair. But potential problems arise in those instances when the press saturates a community with stories about a particular crime or criminal defendant. Recent high-profile cases involving saturation news coverage include the 2018 conviction (later overturned) of TV star and comedian Bill Cosby and the 2015 conviction of NFL football player Aaron Hernandez. Hernandez' trial is an example of the type of trial that can produce extensive media coverage and cause concerns over the ability of a defendant to receive a fair trial. While the Hernandez trial was broadcast and streamed live on the Internet, the judge in the Cosby trial banned cameras in the courtroom and reporters had to turn off their cellphones when in the courtroom to prevent coverage via social media. Reporters were warned violating these rules would face fines or even jail times. 2013, there were more than 2,400 TV news reports at the trial of Jodi Arias in Phoenix, AZ. A site called Court Chatter offers livestreaming of trials across the country. And when celebrities like Bill Cosby face sexual assault charges, the publicity can be even greater, featuring a sensational combination of rape and celebrity. What kind of news creates the greatest danger of prejudice? Some of the more common kinds of stories that critics say endanger the defendant's rights by causing prejudicial publicity either before a jury is impaneled or while a trial is in process: 1. Confessions or stories about the confession that a defendant is said to have made, which include even alluding to the fact there may be a confession The Fifth Amendment says a person does not have to testify against himself or herself. A confession given to police can sometimes be retracted before the trial. People who are innocent sometimes confess to the crime they are accused of committing. Example: 2012, NYT reported the Innocence Project said false confessions figured in 24% or 70 of the 289 convictions overturned by DNA evidence. The organization noted since DNA is available in just a fraction of all crimes, a much larger universe of erroneous convictions - and false convictions -surely exists. People who are mentally impaired, mentally ill, young or easily led are the likeliest to be induced by police to confess according to research 2. Stories about the defendant's performance on a test, such as a polygraph, lie detector or similar device, and about the defendant's refusal to take such a test Many kinds of so-called scientific or forensic evidence, which may help the police identify a suspect, are not admissible as evidence at a trial, often because they are not completely reliable. Even DNA evidence is not always 100% conclusive if the DNA materials were not properly gathered or processed 3. Stories about the defendant's past criminal record or that describe the defendant as a former convict This information is not permitted at the trial. Such "character" evidence is generally ruled inadmissible. It may seem entirely logical to some people that when someone has committed 99 robberies and is again arrested for robbery, the accused probably did commit the crime. As a matter of fact, past behavior is immaterial in the current trial for robbery. The state must prove the defendant committed this robbery 4. Stories that question the credibility of witnesses and that contain the personal feelings of witnesses about prosecutors, police, victims or even judges 5. Stories about the defendant's character (he or she loves to party), associates (he or she hangs around with known syndicate mobsters), and personality (he or she attacks people on the slightest provocation and acts in highly erratic ways) 6. Stories that tend to inflame the public mood against the defendant Such stories include editorial campaigns that demand the arrest of a suspect before sufficient evidence has been collected; person-on-the-street interviews concerning the guilt of the defendant or the kind of punishment that should be meted out after the accused is convicted; televised debates about the evidence of the guilt or innocence of the defendant. All these kinds of stories put the jury in the hot seat as well as circulate vast quantities of misinformation. 7. Stories that are published or broadcast before a trial that suggest, imply or flatly declare that the defendant is guilty 2008, Casey Anthony was charged with first-degree murder in the death of her 2-year-old daughter. Before and during her trial in 2011, many people, including those in the mass media, opined that she was guilty of the charge. The trial was carried live on cable networks and was the focus of daily commentaries by TV host Nancy Grace, who called Anthony "the most hated mom in America." But a jury found her not guilty of murder. The jury did find her guilty of four misdemeanors, such as lying to the police, but an appellate court in 2012 reversed two of these convictions Impact on Jurors That intensive press coverage of a criminal case might jeopardize the rights of the defendant is generally assumed. But whether it will harm the defendant's 6A rights remains more of an open question. There are those who argue vigorously that any publicity can result in a jury biased for or against the defendant. In fact, there is a serious lack of evidence that even intensive press coverage of a particular case can have a negative impact on the defendant. For nearly 60 years social scientists have attempted to prove/disprove this assumption with less than great success! The law prohibits the use of real jurors in actual trials as subjects for this research. Complicating the resolution of this problem is the fact that many social scientists are beginning to believe people tend to remember far less about what they read or watch on TV or blogs than has been traditionally assumed. Social scientists have failed to firmly establish the validity of the assumption that prejudicial publicity will seriously damage the defendant's fair trial rights. The Supreme Court weighed in on this question in 2010 in ruling on an appeal by Jeffrey K. Skilling, former chief executive of Enron, after his conviction for fraud. When the Houston energy company failed, thousands of people in the community lost their jobs. Skilling's attorneys argued the conviction should be reversed; the jury in the trial was certainly prejudiced because of what they called "pervasive community bias against those who oversaw Enron's collapse" The Supreme Court disagreed. Justice RBG wrote the presumption of juror prejudice only arises in extreme cases. While there was certainly widespread negative publicity in Houston, Ginsburg made the following points: è Four years elapsed between the time Enron collapsed and the trial. The shrillness (power) of publicity had waned è There were 4 million potential jurors in the Houston area. "Given this large, diverse pool of potential jurors, the suggestion 12 impartial individuals could not be empaneled is hard to sustain" è The jury that convicted him also acquitted him of nine related counts of insider training è Jurors had to fill out a lengthy questionnaire, drafted largely by Skilling's attorneys, and were then questions individually Ginsberg added, "Appellate courts making after-the-fact assessments of the media's impact on jurors should be mindful that their judgments lack on-the-spot comprehensions of the situations possessed by trial judges" Ginsburg's ruling in Skilling v. United States (2010, 6-3) plays a critical role today in cases involving pretrial publicity. Example: Supreme Court of KS in 2015 in the murder case of Kansas v. Longoria considered whether a trial court's denial of the defendant's motion for a change of venue due to extensive pretrial publicity in the small-population KS county of Barton violated the defendant's 6A right to a fair trial by an impartial jury. The KS high court wrote that "defendants face a high burden under the Skilling test - generally a defendant can obtain a change of venue only upon showing that publicity has displaced the judicial process entirely or the courtroom proceedings more resemble a circus or a lynch mob" The court identified seven factors under the so-called Skilling test that courts should use to evaluate whether there is a presumption of prejudice caused by pretrial publicity 1. Media interference with actual courtroom proceedings 2. The magnitude and tone of the media coverage (factual coverage versus inflammatory coverage)a 3. The size and characteristics of the community in which the crime occurred (smaller populations may make it less likely to receive an impartial trial since there are fewer potential jurors from which to choose) 4. The amount of time elapsed between the crime and the trial 5. The jury's verdict 6. The impact of the crime on the community 7. The effect, if any, of publicity given to a confession or other "smoking-gun type of information," such as a co-defendant's publicized decision to plead guilty to the same crime Applying these factors in Longoria, the Supreme Court of KS concluded though the defendant "established extensive media coverage and a high level of community familiarity" this was not enough to "give rise to a presumption that he would not receive a fair trial. He must present evidence of a lynch-mob mentality, and he failed to do so" Some courts concentrate on a shorter list of four criteria from Skilling, namely: 1. The size and characteristics of the community in which the crime occurred 2. The content of the media coverage 3. The timing of the media coverage (the amount of time of elapsed between the crime and the trial) 4. The existence of media interference with court proceedings When is a Juror Disqualified? The U.S. Constitution guarantees both criminal and civil litigants a right to a fair trial by an impartial jury, with the Sixth Amendment safeguarding this right in criminal cases. An impartial juror is one who is capable and willing to decide the case solely on the evidence admitted to court. This definition is over 200 years old and comes from the famous trial of former U.S. Vice President Aaron Burr for treason. An impartial juror is a person who can disregard his pre-existing opinions and knowledge and, in their place, render a verdict based only on the evidence and rules of law presented in court The fact that a juror may have prior knowledge of the facts of a case or preexisting opinion about it before being impaneled as a juror doesn't disqualify him or her from jury service! The keys are the ability and willingness "to set aside out-of-court information and to decide the case upon the evidence presented at trial" Summary The 1A to the U.S. Constitution guarantees freedom of the press; the 6A guarantees every criminal defendant a fair trial. Many people believe these two amendments are in conflict because, often, publicity about a criminal case can prejudice a community against a defendant and make it impossible to find a fair and impartial jury in the case. The kinds of publicity that can be most damaging to a defendant include material about confessions or alleged confessions, stories about a past criminal record, statements about defendant's character, comments about the defendant's performance on scientific tests or refusal to take such tests and statements made before a trial suggesting the defendant's guilt. Social science has NOT yet proved that such publicity does in fact create prejudice or that people cannot set aside their beliefs about a case and render a verdict based on the facts presented at the trial. An impartial juror is not required to be free of all knowledge or impressions about a case; the juror must be able to set aside his/her pre-existing knowledge and opinions, and instead decide the case based only on the evidence admitted in court

Obscenity Law ...'s ability to regulate certain forms of speech not protected by the ... ...! Obscenity A ... class of ... ... material that is not protected by the ... ... [The legal definition is different from our vernacular definition of obscenity; is ...!] Indecent material Material that may be ... ... but which is protected by the ... ... Also called "... material" or "... ... material" May be barred in works available to ... [Is not ... (is ...), but can be ...] Pornography A term with no ... ..., referring to a wide array of material ranging from ... to ... ... sexual material [No ... meaning] History of Obscenity 1815 - First obscenity ... in the U.S. (... law) Jesse Sharpless fined for exhibiting a painting of a man "in an imprudent posture with a woman" 1842 - First ... obscenity ... in the U.S. (passed by ...) -Previously prosecutions took place under ... law for "crimes against ..." -Regulated ... on obscene articles (material coming from overseas, international countries like France) 1873 - The ... Act -Declared that all obscene ..., ..., ... and other materials were ... (could possess these materials but not ... them!) -No ... of 'obscenity' contained in the law [meant whatever the prosecutor meant, ... would get stronger over time] -Still on the books! 1957-77 - Busy period for obscenity ... -Experiment with sexual imagery in art, literature, etc. Innovations in literature first. Feminist and gay liberation movements (sexual content - brought into prosecution under Comstock Act) -When ... ... of 'obscenity' were determined by the U.S. Supreme Court Definitions of Obscenity Hicklin Rule (1873-1957) -Working definition of 'obscenity' adopted by courts when considering ... ... cases (... ...; no official definition in the ... ...) -Borrowed from ... law -A work is obscene if "it has a tendency to ... and ... those whose ... are open to such immoral influences and into whose hands it might fall." -In short: "If something might influence the ... of a ..." (Developmentally disabled or an actual ...) Incredibly ... definition, very ... - favored ... Example: R-rated movies, these could .../influence the ... of a ...! Censored in some way, withheld publishing manuscripts by publishers for fear of violating the ... ... (repressive environment that limited speech at the time) Between 1873 and 1957, America had a very conservative culture as a result Roth-Memoirs Test (1957-1973) The Hicklin rule doesn't work anymore! Based on case Roth v. United States Three elements: 1. The ... theme of the material taken as a ... must appeal to ... ... in sex (The purpose is to arouse the viewer, designed to arouse) (We know not all material is meant to be ...: nudity in science textbook of human body, Greek statues) 2. A court must find the material is ... ... because it affronts ... ... ... relating to the description or representation of sexual matters 3. Before something can be found to be obscene, it must be utterly without r... ... ... (More so eye of the beholder... Example: Sodomy laws between 1957-73, as a political act an artist displays images of sodomy in public square. Is the dominant theme as a whole a prurient interest in sex? YES Could it be patently offensive because it affronts contemporary community standards? YES BUT it has r... ... ...! Political protest against sodomy laws - ultimately goes to a ... to decide MUST FEATURE ALL THREE ELEMENTS TO BE CONSIDERED OBSCENE UNDER THE ROTH-MEMOIRS TEST! This marked the beginning of our ... definition of obscenity law

Government's, First Amendment Narrow, sexually graphic, 1A Illegal Sexually graphic, 1A Adult, sexually explicit Children Illegal (legal), regulated Legal significance, obscenity, constitutionally protected Legal Prosecution (common) Federal, statute (legislature) Common, God Importation Comstock Books, pamphlets, images, non-mailable (circulate) Definition, definition Prosecutions Modern definitions Comstock Act (statutory construction, Comstock Act) British Deprave, corrupt, minds Mind of a child, child Loose, broad, prosecutors Deprave, mind of a child Comstock Act Dominant, whole, prurient interest Prurient Patently offensive, contemporary community standards Redeeming social value Redeeming social value, jury Contemporary definition of obscenity law

Lower Court Rulings -Most lower federal courts have treated the Supreme Court decision in Branzburg as the very ... ruling that Powell said it was in 1974 (Saxbe)! -Branzburg ruling focused on a reporter's responsibility to testify before a ... ... - this is generally how lower courts have applied the precedent, granting reporters a q... right to refuse testimony in other kinds of circumstances! Example: 3rd Circuit (1979) characterized Branzburg - "The Supreme Court decided a journalist doesn't have an a... p... under the ... ... to refuse to appear and testify before a ... ... to answer questions relevant to the investigation of the commission of a crime. No Supreme Court case since that decision has extended the holding beyond which was necessary to vindicate the public interest in law enforcement ensuing effective ... ... proceedings." Not all U.S. Courts of Appeals have looked at Branzburg in such an expansive manner! -5th Circuit (1998): "Although some courts have taken from Justice Powell's concurrence a mandate to construct a b..., q... news r...' p... in criminal cases, we decline to do so. Justice Powell's separate writing only emphasizes that at a certain point, the 1A must protect the press from government intrusion." -4th Circuit (2013): rejected expansive reading of Branzburg in the Sterling case. "Justice Powell's concurrence in Branzburg simply doesn't allow for the recognition of a ... ... reporter's privilege in a criminal proceeding which can only be overcome if the government satisfies the heavy burdens of the three-part, compelling-interest test (articulated by dissenters in Branzburg)." ... of the federal appellate courts have ruled the ... ... provides at least l.../q... protection for reporters who are asked to testify or produce photos or other materials at hearings other than ... ... proceedings! 1. ... Circuit (KY, MI, OH, TN): rejected this notion in 1987 "Because we conclude that acceptance of the position would be tantamount to our substituting as a holding in Branzburg, the dissent written by Justice Stewart, we must reject that position. That portion of Justice Powell's opinion certainly doesn't warrant rewriting the majority opinion to grant a ... ... testimonial privilege to news reporters." ... Circuit's refusal to recognize a q... ... ... p... for reporters proved pivotal in Convertino v. United States Department of Justice (2008) -A federal judge in MI ordered Ashenfelter, a reporter for Detroit Free Press to reveal the identity of anonymous DOJ officials he used as sources for a negative story four years earlier about Convertino, then an assistant U.S. attorney. C later filed a civil lawsuit against the Justice Department for allegedly violating the federal Privacy Act by leaking confidential and harmful information about him from his personnel file. To determine the identity of the unnamed lawmakers within the Justice Department, C subpoenaed A, who refused to reveal his sources -In ruling against A, U.S. District Judge wrote "the ... Circuit has explicitly declined to recognize a q... ... ... p... for reporters" and he pointed the need for disclosure, "C cannot sustain his ... of ... on the Privacy Act claim without identifying A's source." -A failed to show up at a deposition where he would have been questioned about his sources, a move that typically triggers contempt proceedings -A then tried a new somewhat novel tactic to keep silent at a 12/2008 deposition: He repeatedly invoked his right against s...-... protected by the ... Amendment (that right was relevant to the extent that C had suggested A conspired with, protected and abetted the Justice Department leakers by refusing to reveal their identities when they broke federal laws by revealing the investigation of C) -In 02/2009, A was ordered to reappear for a deposition and to either answer C's questions about the Justice Department sources or to provide evidence of the specific criminal charge underlying his ... Amendment objection -During an 04/2009 deposition, Judge ruled in favor of A when he asserted his ... Amendment right against s...-... after C's attorney asked A to reveal the names of his sources. Kept A from going to jail Hailed by many observers as a victory for freedom of the press, even though it rested on the ... Amendment and not the ... Amendment! ... Circuit affirmed Judge's ruling The appellate court said the test for a valid invocation of the ... Amendment, articulated by the Supreme Court in an earlier case, Hoffman v. United States, "whether the witness has r... c... to ap... d... from a d... a..." And the test, the ... Circuit ruled, turns "not on the p... or likelihood of prosecution, but rather on the p... of prosecution." Here prosecution was p... for A! C's suit against DOJ "alleges facts if proven could implicate A in the commission of one or more crimes, including the allegation federal officials illegally provided A with two confidential documents" Even if it was unlikely A w... be prosecuted if he revealed his sources, the fact that prosecution was at least p... meant his invocation of the 5A was valid Convertino does seem to give journalists another weapon in their battle to keep a source's identity confidential. In circumstances where reporters receive written government reports, the ... ... is available! 2. ... Circuit (WI, IL, IN) -Also does not provide protection for reporters who are asked to testify or produce photos or other materials at hearings other than a ... ... proceeding McKevitt v. Pollasch Refused to recognize a ...'s ... and held "courts should simply make sure a subpoena directed to the media is r... in the c..., which is the general criterion for judicial review of subpoenas" -Represented a substantial rethinking of the Branzburg decision made by an extremely well-respected jurist (Posner) As of 11/2021, ... states had enacted a s... protection called a ... law that offers reporters some (though not usually absolute) protection against being forced to reveal the identity of confidential sources. Courts in the remaining nine states EXCEPT ... have recognized various kinds of c... and/or ...-law testimonial privileges for reporters The constitutional privilege has considerable e...: Its successful application depends on several factors 1. What kind of p... is involved? The privilege is more readily granted to a journalist involved in a ... suit than to one called to testify before a ... ... 2. What kind of m... is sought? A journalist is more likely to be protected by the privilege when the name of a ... source is sought than when courts are seeking testimony about the information that isn't ... or about events w... by the reporter 3. Testimonial privilege by both federal and state courts through the Constitution or common law is qualified by various t... the courts have developed, t... that usually mirror the one outlined by Justice Stewart in ...! Is this information important? Is it clearly relevant to the proceedings? Is there somewhere else to get the information? Without a binding ... ... ruling, the lower federal and state courts have been permitted to fashion their ... rules; there is d... v... from state to state, federal circuit to circuit Look to the precedents in your region as the final authority in the matter! -A reporter could be called to testify in three different kinds of court proceedings: a c... l..., c... c..., or a ... ...! -Courts are more likely to recognize the right of a journalist to refuse to testify in a...? Least likely to recognize the right if the reporter is called before a...? 1. Civil Cases -Recognition of the privilege in civil cases came only a year after the Branzburg ruling, when a U.S. District Court in D.C. quashed a subpoena issued to reporters from a variety of newspapers and magazines who were thought to have materials obtained during their coverage of the Watergate break-in. Materials were sought by members of the DNC, suing to win damages from some of the Watergate burglars. The court said reporters had at least a q... p... under the ... ... to refuse to answer such questions or provide such material -Four years later, 10th Circuit ruled filmmaker Hirsch couldn't be forced to reveal confidential information he obtained in connection with a civil suit by the estate of Karen Silkwood against the Kerr-McGee Corporation. S died mysteriously in an auto accident after she threatened to expose improper safety conditions in the nuclear facility she worked. H was preparing a documentary film on S's life and death In a typical civil suit, the court will ask three questions when deciding whether to force the reporter to testify 1. Has the person seeking the information from the reporter (normally the plaintiff) shown this information is of c... r... in the case? Must be related to the m... before court! 2. Does this information go to the h... of the i...? Is it c... to the o... of the case? 3. Can the person who wants the information show the court there is no other a... s... for this information? If all three questions are answered with yes, the chances are good the court will require the reporter to reveal the information But how rigorously does the judge apply the test? It often depends on the reporter's r... to the l...! -If the reporter isn't a p... to the l... but merely has information that may be of value to one or both p..., a judge typically applies the test VERY rigorously and normally the journalist won't be required to testified Example: Federal court in San Diego quashed a subpoena to a freelance journalist (Davis) who had published a series of articles detailing jail deaths and the high inmate suicide rate in San Diego jails. K. NeSmith's widow was suing San Diego for failing to prevent the suicide of her husband while he was incarcerated. In her suit, C. NeSmith cited Davis' reporting as evidence of the city's jail system negligence. Lawyers for San Diego subpoenaed Davis, seeking the identity of her sources for the articles and her notes, research and other interview materials. Davis, backed by attorneys, challenged the subpoena, arguing the government didn't show it couldn't obtain the information it wanted through a... m... Federal magistrate judge agreed and ruled in favor of Davis! But journalists aren't always victorious in civil suits! Example: Federal judge in CT ruled a reporter had to testify in a securities case as to whether one of the defendants had actually made the statements that were attributed to him in a newspaper article written by the reporter. The judge ruled that the testimony sought was directly relevant to the case and was unavailable from another source. The court also noted it wasn't seeking information about a confidential source If the reporter IS a p... to the l..., either as a p... or d..., courts are less willing to let journalists off the hook! In these instances it is more likely (though not common) for the court to require the reporter to cooperate... Example: In Dr. Hatfill's civil lawsuit against the federal government for leaking to journalists his name as the possible perpetrator who mailed anthrax-laced letters, a federal judge ordered six nonparty journalists to reveal the names of their confidential FBI and DOJ sources that leaked Hatfill's name -Though recognizing the journalists had a q... ... ...-based p... not to testify, U.S. District Court Judge reasoned the p... has been overcome by Hatfill because "the actual identity of the sources will be important and quite possibly essential" to his lawsuit and because Hatfill has "exhausted all reasonable a... for acquiring the sources of the leaked information" -Former USA Today reporter Locy was held in contempt of court by Judge Walton and ordered to personally pay up to $5,000 a day until she revealed to Hatfill the name of her source. Judge Walton prohibited Locy from accepting reimbursement from USA Today to satisfy the monetary sanction, though an appellate court quickly stayed (stop) the fines until it could hear the matter in full, and it later dismissed the matter as moot after Hatfill settled the case with the government for more than $5 million Reporters more commonly find themselves as ... in l..., typically a l... suit -Oftentimes the plaintiff seeks to know about sources the reporter used to prepare the l... story, or where and how the reporter got the information for the l... story -Whether the court will force the reporter to testify in such instances usually depends on several factors, all related to the three-part test (A plaintiff will often be required to show the information held by the reporter goes to the very h... of the l...) [Plaintiff may have to show they cannot possibly prove n... or ... ... without information from the reporter!] -Or the court will require the plaintiff show the l... claim actually has merit and not just an attempt to harass the defendant -The court will usually require the plaintiff to show there is n... o... s... for this information, the plaintiff has exhausted all o... p... means of gaining this information -Supreme Court ruled it was not an infringement of the reporters' ... ... rights for the defendant to ask reporters what they were thinking about as they prepared the l... story. Such questions may or may not involve confidential sources! Example: -4th Circuit ruled a TV station in Richmond, VA didn't have to disclose the identity of a confidential source it used for a story that became the basis of a l... lawsuit. Relying on a confidential source, WTVR aired a news story about a county school system that hired and later fired a woman who previously had been convicted of a felony. VA law prohibits a school system from hiring a convict felon for any position. The story implied the woman, Horne, had lied about her prior conviction on the job application. Though the story didn't name her specifically, Horne sued WTVR after the story aired, alleging she had disclosed her criminal history on the application and the story defamed her by suggesting she hadn't. The district court, and 4th Circuit on appeal, ruled Horne was a public official who would have to prove WTVR published the story with ... ... -The district court determined Horne's allegations of defamation came not from the confidential source but from how WTVR framed the story. But Horne nevertheless argued WTVR should have to reveal the identity of its confidential source. "The source's identity may provide evidence the source either knew Horne didn't lie on her job application or the source was untrustworthy" -4th Circuit disagreed. The court ruled "no evidence that disclosure of the source would reveal this information - it is merely suspicion!" Horne "didn't provide a sufficiently compelling interest in the identity of the source to overcome the competing ... ... concerns" Example: -FL appeals court ruled CNN needed to provide copies of emails and texts as part of a l... lawsuit. A physician, Black, sued CNN for l... after the network broadcast a story saying the pediatric heart-surgery program he led suffered from a high infant-mortality rate. As part of his lawsuit, Black sought the emails and texts sent between reporters and the key source for reporting. CNN argued the correspondence was protected by FL's ... law -But the FL appeals court disagreed! Trial court in the case found a "compelling interest" for CNN to disclose these emails and texts, including (1) Black's need to prove f... in his lawsuit, (2) Robinson's central role as a source of the story, (3) since Robinson claimed she deleted all of her copies of the correspondence, the information couldn't be obtained from a... s..." -In ruling against CNN, the state appellate court concluded "while the journalist p... must be protected, it is a q... p...!" A reporter who refuses to obey a c... o... and give the plaintiff critical information in a libel suit surely faces a c... of c... charge and potentially a f... and ... sentence But that isn't all! In a few cases when a reporter has refused a c... o... to reveal their source for a libelous story, the court ruled as a matter of law that n... s... for the story e...! This strips the libel defense for a newspaper or b-cast station. The judge is saying the reporter m... u... the story! Not a common occurrence Example: Ayash v. Dana-Farber Cancer Institute (2005) -Supreme Judicial Court of Mass. affirmed a default judgment against The Boston Globe in a libel suit because the newspaper failed to disclose confidential sources. In this lawsuit Ayash of the D-F Cancer Institute alleged The Globe published a series of scathing/inaccurate articles written by Knox about A's treatment of several patients who allegedly were given overdoses of a highly toxic chemotherapy drug, destroying the doctor's reputation. One article even ran under the blunt (if false, defamatory) headline "Doctor's Orders Killed Cancer Patient" -During discovery, A sought the identities of sources consulted by Knox before writing articles that were subsequently published and that formed, at least in part, the basis of the doctor's lawsuit. At the trial court level, The Globe refused to provide information that would lead to the identities of Knox's confidential sources, despite a court order to disclose their identities. Mass. is one of 9 states that doesn't have a ... law giving some protection to reporters against disclosure of confidential information -A judgment of civil contempt entered by the trial court judge against The Globe and Knox, the judge awarded a pretrial judgment against them. A jury was allowed to determine damages ($2.1 million award to A) -In affirming the default judgment and damage award, Mass. high court noted "The Globe defendants had no special c... or s... testimonial p..., based on their status as newspaper publisher or reporter that would justify their refusal to obey o..." It agreed with the trial court judge's determination that "the plaintiff's need for the requested information outweighed the p... i... in the protection of the f... f... of i... to the press" Example: -9th Circuit handed down an important ruling in 1993 when it extended the ...'s p... in a civil suit to the a... of b... too! Often the p... has been granted only to the salaried employees of n..., m... and b... s.... F... w... like b... a... were often denied the protection. The court ruled a b... a... clearly had a right to invoke the ... ... privilege. "The ...'s p... is designed to protect in... r... regardless of the m... to report the news to the public"

Lower Court Rulings Most lower federal courts have treated the high court's decision in Branzburg as the very narrow ruling that Powell said it was in 1974! The Branzburg ruling focused on a reporter's responsibility to testify before a grand jury. And that is generally how the lower courts have applied the precedent, granting reporters a qualified right to refuse testimony in other kinds of circumstances! 3rd Circuit 1979 ruling, characterized Branzburg in this fashion: "In Branzburg, the Supreme Court decided a journalist doesn't have an absolute privilege under the 1A to refuse to appear and testify before a grand jury to answer questions relevant to an investigation of the commission of a crime. No Supreme Court case since that decision has extended the holding beyond that which was necessary to vindicate the public interest in law enforcement and ensuing effective grand jury proceedings." Not all the U.S. Courts of Appeals have looked at Branzburg in such an expansive manner, though. In 1998, panel of judges in 5th Circuit: "Although some courts have taken from Justice Powell's concurrence a mandate to construct a broad, qualified news reporters' privilege in criminal cases, we decline to do so. Justice Powell's separate writing only emphasizes that at a certain point, the 1A must protect the press from government intrusion." The court went ton to require a TV station to surrender the unaired portions of a videotape interview with a man accused of arson. Similarly, the 4th Circuit in 2013 rejected an expansive reading of Branzburg in the Sterling case involving James Risen. "Justice Powell's concurrence in Branzburg simply doesn't allow for the recognition of a 1A reporter's privilege in a criminal proceeding which can only be overcome if the government satisfies the heavy burdens of the three-part, compelling-interest test (articulated by dissenters in Branzburg)." Ten of the federal appellate courts have ruled the 1A provides at least limited or qualified protection for reporters who are asked to testify or produce photos or other materials at hearings other than grand jury proceedings.* 6th Circuit (KY, MI, OH, TN) rejected this notion in 1987. "Because we conclude that acceptance of the position would be tantamount to our substituting, as a holding in Branzburg, the dissent written by Justice Stewart, we must reject that position. That portion of Justice Powell's opinion certainly doesn't warrant rewriting the majority opinion to grant a 1A testimonial privilege to news reporters." 6th Circuit's refusal to recognize a qualified 1A privilege for reporters proved pivotal more than two decades later in 2008. When a federal judge in MI ordered Ashenfelter, reporter for Detroit Free Press, to reveal the identity of anonymous Justice Department officials he used as sources for a negative story four years earlier about Convertino, then an assistant U.S. attorney. Convertino later filed a civil lawsuit against the Justice Department for allegedly violating the federal Privacy Act by leaking confidential and harmful information about him from his personnel file. To determine the identity of the unnamed lawmakers within the Justice Department, Convertino subpoenaed Ashenfelter, who refused to reveal his sources. In ruling against Ashenfelter in 08/2008, U.S. District Judge Cleland wrote "the Sixth Circuit has explicitly declined to recognize a qualified 1A privilege for reporters" and he pointed the need for disclosure, "Convertino cannot sustain his burden of proof on the Privacy Act claim without identifying Ashenfelter's source." 10/2008, Ashenfelter failed to show up at a deposition where he would have been questioned about his sources - a brazen move that typically triggers contempt proceedings. Ashenfelter then tried a new somewhat novel tactic to keep silent at a 12/2008 deposition: He repeatedly invoked his right against self-incrimination protected by the 5th Amendment to the U.S. Constitution (that right was relevant to the extent that Convertino had suggested Ashenfelter conspired with, protected and abetted the Justice Department leakers by refusing to reveal their identities when they broke federal laws by revealing the investigation of Convertino.) In 02/2009, Ashenfelter was ordered to reappear for a deposition and to either answer Convertino's questions about the Justice Department sources or to provide evidence of the specific criminal charge underlying his Fifth Amendment objection. During an 04/2009 deposition, Judge Cleland ruled in favor of Ashenfelter when he asserted his Fifth Amendment right against self-incrimination after Convertino's attorney asked Ashenfelter to reveal the names of his sources. Kept Ashenfelter from going to jail, was hailed by many observers as a victory for freedom of the press, even though it rested on the Fifth Amendment and not the First Amendment. 2015, 6th Circuit affirmed Judge Cleland's ruling in Convertino v. United States Department of Justice. The appellate court said the test for a valid invocation of the Fifth Amendment, articulated by the Supreme Court in an earlier case, Hoffman v. United States, "whether the witness has reasonable cause to apprehend danger from a direct answer" And the test, the 6th Circuit ruled, turns "not on the probability or likelihood of prosecution, but rather on the possibility of prosecution." Here prosecution was possible for Ashenfelter. Convertino's suit against DOJ "alleges facts if proven could implicate Ashenfelter in the commission of one or more crimes, including the allegation federal officials illegally provided Ashenfelter with two confidential documents." Even if it was unlikely Ashenfelter would be prosecuted if he revealed his sources, the fact that prosecution was at least possible meant his invocation of the 5A was valid. Convertino does seem to give journalists another weapon in their battle to keep a source's identity confidential. "In circumstances where reporters receive written government reports, the 5A is available" Zuckerman (A's lawyer). The other federal appellate court rule the 1A doesn't provide protection for reporters who are asked to testify or produce photos or other materials at hearing other than grand jury proceedings was the 7th Circuit. Guided by Judge Posner, 7th Circuit in McKevitt v. Pallasch refused to recognize a reporter's privilege and held "courts should simply make sure that a subpoena directed to the media is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas." The McKevitt decision represented a substantial rethinking of the Branzburg decision by an extremely well-respected jurist. As of November 2021, 41 states had enacted a statutory protection called a shield law that offers reporters some (though not usually absolute) protection against being forced to reveal the identity of confidential sources. Courts in the remaining nine states, except WY, have recognized various kinds of constitutional and/or common-law testimonial privileges for reporters. The constitutional privilege has considerable elasticity. Its successful application depends on several factors: a. What kind of proceeding is involved? The privilege is more readily granted to a journalist involved in a CIVIL SUIT than to one called to testify before a grand jury b. What kind of material is sought? A journalist is more likely to be protected by the privilege when the name of a confidential source is sought than when courts are seeking testimony about the information that is not confidential or about events actually witnessed by the reporter. c. Testimonial privilege derived by both federal and state courts through the Constitution or common law is qualified by the various tests the courts have developed, tests that usually mirror the one outlined by Justice Stewart in Branzburg. Is this information important? Is it clearly relevant to the proceedings? Is there somewhere else to get the information? Important to remember without a binding Supreme Court ruling, the lower federal and state courts have been permitted to fashion their own rules; there is distinct variance from state to state, federal circuit to federal circuit. Look to the court precedents in your region as the final authority in this matter! Civil Cases A reporter could be called to testify in three different kinds of court proceedings: a civil lawsuit, a criminal case or a grand jury. Courts are more likely to recognize the right of a journalist to refuse to testify in a civil action, and least likely to recognize this right if the reporter is called before a grand jury! Recognition of the privilege in civil cases cam only a year after the Branzburg ruling, when a U.S. District Court in D.C. quashed a subpoena issued to reporters from a variety of newspapers and magazines who were thought to have materials obtained during their coverage of the Watergate break-in. The materials were sought by members of the Democratic National Committee who were suing to win damages from some of the Watergate burglars. The court said reporters had at least a qualified privilege under the 1A to refuse to answer such questions or provide such material. Four years later, 10th Circuit ruled filmmaker Arthur Hirsch couldn't be forced to reveal confidential information he had obtained in connection with a civil suit by the estate of Karen Silkwood against the Kerr-McGee Corporation. Silkwood died mysteriously in an auto accident after she threatened to expose improper safety conditions in the nuclear facility she worked. Hirsch was preparing a documentary film on Silkwood's life and death. In a typical civil suit, the court will ask three questions when deciding whether to force the reporter to testify: 1. Has the person seeking the information from the reporter - normally the plaintiff - shown that this information is of certain relevance in the case? Must be related to the matter before court 2. Does this information go to the heart of the issue before the court? Is it critical to the outcome of the case? 3. Can the person who wants the information show the court that there is no other alternative source for this information? If all three questions are answered yes, the chances are good the court will require the reporter to reveal the confidential information. How rigorously the judge applies this test often depends on the reporter's relationship to the lawsuit. If the reporter isn't a party to the lawsuit but merely has information that may be of value to one or both parties, a judge typically applies the test very rigorously and normally the journalist will not be required to testify. Example: 2018, federal court in San Diego quashed a subpoena to a freelance journalist, Davis, who had published a series of articles detailing jail deaths and the high inmate suicide rate in San Diego jails. K. NeSmith's widow was suing San Diego for failing to prevent the suicide of her husband while he was incarcerated. In her suit, C. NeSmith cited Davis' reporting as evidence of the city's jail system negligence. Lawyers for San Diego subpoenaed Davis, seeking the identity of her sources for the articles and her notes, research and other interview materials. Davis, backed by attorneys working for her pro bono, challenged the subpoena, arguing the government didn't show it couldn't obtain the information it wanted through alternative means. 2018, federal magistrate judge agreed and ruled in favor of Davis (quashed subpoena). But journalists aren't always victorious in civil suits. 1996, federal judge in CT ruled a reporter had to testify in a securities case as to whether one of the defendants had actually made the statements that were attributed to him in a newspaper article written by the reporter. The judge ruled that the testimony sought was directly relevant to the case and was unavailable from another source. The court also noted it wasn't seeking information about a confidential source. If the reporter is a party in the lawsuit, either as a plaintiff or a defendant, courts are less willing to let journalists off the hook. In these instances it is more likely, but still not common, for the court to require the reporter to cooperate. 2007, in Dr. Steven Hatfill's civil lawsuit against the federal government for leaking to journalists his name as the possible perpetrator who mailed anthrax-laced letters in 2001, federal judge ordered sex nonparty journalists to reveal the names of their confidential FBI and DOJ sources that leaked Hatfill's name. Though recognizing the journalists had a qualified 1A-based privileges not to testify, U.S. District Court Judge Walton reasoned the privilege has been overcome by Hatfill because "the actual identity of the sources will be important and quite possibly essential" to his lawsuit and because Hatfill has "exhausted all reasonable alternatives for acquiring the sources of the leaked information." Though three of the journalists caught a break when their sources voluntarily released them from their promises of confidentiality, the Hatfill saga continued in 2008 when former USA Today reporter Locy was held in contempt of court by Judge Walton and ordered to personally pay up to $5,000 a day until she revealed to Hatfill the name of her source. Judge Walton prohibited Locy from accepting reimbursement from USA Today to satisfy the monetary sanction, though an appellate court quickly stayed (stop) the fines until it could hear the matter in full, and it later dismissed the matter as moot after Hatfill settled the case with the government for more than $5 million. Reporters far more commonly find themselves as defendants in lawsuits, typically a libel suit. Oftentimes the plaintiff seeks to know about sources the reporter used to prepare the libelous story, or where and how the reporter got the information for the libelous story. Whether the court will force the reporter to testify in such instances usually depends on several factors, all of which are related to the three-part test from earlier. A plaintiff will often be required to show the information held by the reporter goes to the very heart of the lawsuit. Example: the plaintiff may have to show they cannot possibly prove negligence or actual malice without information from the reporter. Or, the court will require that the plaintiff show the libel claim actually have merit, that it is not simply an attempt to harass the defendant. Finally, the court will usually require the plaintiff to show there is no other source for this information, the plaintiff has exhausted all other potential means of gaining this information. 1979, U.S. Supreme Court ruled it was not an infringement of the reporters' 1A rights for the defendant to ask reporters what they were thinking about as they prepared the libelous story. Such questions may or may not involve confidential sources! 2018, 4th Circuit ruled a TV station in Richmond, VA didn't have to disclose the identity of a confidential source it used for a story that became the basis of a libel lawsuit. Relying on a confidential source, WTVR aired a news story about a county school system that hired and then later fired a woman who previously had been convicted of a felony. VA law prohibits a school system from hiring a convict felon for any position. The story implied the woman, Angela Horne, perhaps had lied about her prior criminal conviction on the job application. Though the story didn't name her specifically or the position, Horne sued WTVR after the story aired, alleging she had in fact disclosed her criminal history on the application and the story defamed her by suggesting she hadn't. The district court, and 4th Circuit on appeal, ruled Horne was a public official who would have to prove WTVR published the story with actual malice. The district court determined Horne's allegations of defamation came not from the underlying facts provided by the confidential source but from how WTVR framed the story. But Horne nevertheless argued WTVR should have to reveal the identity of its confidential source. The source's identity, she said, may provide evidence the source either knew Horne didn't lie on her job application or the source was untrustworthy. In Horne v. WTVR 4th Circuit disagreed. The court ruled "no evidence that disclosure of the source would reveal this information - it is merely suspicion" The court concluded Horne "didn't provide a sufficiently compelling interest in the identity of the source to overcome the competing 1A concerns" But in a 2020 case, FL appeals court ruled CNN needed to provide copies of emails and text messages as part of a libel lawsuit against the network. A physician, Black, sued CNN for libel after the network broadcast a story saying in part the pediatric heart-surgery program he led suffered from a high infant-mortality rate. As part of his lawsuit, Black sought the emails and text messages sent between CNN reporters and Kelly Robinson, who was the key source for CNN's reporting. CNN argued the correspondence was protected by FL's shield law. But the 4th District Court of Appeal in FL disagreed in CNN v. Black. Trial court in the case found what it said was a "compelling interest" for CNN to disclose these emails and texts, given the "unique circumstances of the case" including (1) Black's need to prove fault in his lawsuit, (2) Robinson's central role as a source of the story, (3) the fact, since Robinson claimed she had deleted all of her copies of the correspondence, the information couldn't be obtained from another source" 4th District Court of Appeal said the trial court "followed clearly established law in its analysis" The appellate court noted the emails and texts would show CNN reporters' state of mind as they prepared the story - what CNN "knew or did not know at the time of publication" in other words. In ruling against CNN, the state appellate court concluded "while the journalist privilege must be protected, it is a qualified privilege!" A 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 isn't all! In a few cases when a reporter has refused a court order to reveal their source for a libelous story, the court has ruled as a matter of law that no source for the story exists. This declaration strips away the libel defense for a newspaper or broadcasting station. The judge is saying the reporter made up the story. This is not a common occurrence, but it is certainly a frightening one. Example: Ayash v. Dana-Farber Cancer Institute the Supreme Judicial Court of MA in 2005 affirmed a default judgment against The Boston Globe in a libel suit because the newspaper failed to disclose confidential sources. In this lawsuit Dr. Ayash of the D-F Cancer Institute alleged The Globe published a series of scathing and inaccurate articles in 1995 written by reporter Knox about Ayash's treatment of several patients who allegedly were given overdoses of a highly toxic chemotherapy drug, thereby destroying the doctor's reputation. One article even ran under the blunt (and if false, defamatory) headline "Doctor's Orders Killed Cancer Patient" (if false, headlines can form the basis of a libel suit). During the discovery stage of the litigation, Ayash sought the identities of sources consulted by Knox before writing articles that were subsequently published in the Globe and that formed, at least in part, the basis of the doctor's lawsuit. At the trial court level, The Globe refused to provide information that would lead to the identities of Knox's confidential sources, despite a court order to disclose their identities. MA is one of 9 states that doesn't have a shield law giving some protection to reporters against disclosure of confidential information. A judgment of civil contempt was entered by the trial court judge against The Globe and Knox and in turn, the judge awarded a pretrial judgment against them. A jury was allowed to determine damages and it meted out a whopping $2.1 million award to Ayash. In affirming both the default judgment and the damage award, MA high court noted "The Globe defendants had no special constitutional or statutory testimonial privilege, based on their status as newspaper publisher or reporter, that would justify their refusal to obey orders" It agreed with the trial court judge's determination that "the plaintiff's need for the requested information outweighed the public interest in the protection of the free flow of information to the press" 9th Circuit handed down an important ruling in 1993 when it extended the reporter's privilege in a civil suit to the authors of books too! Often the privilege has been granted only to the salaried employees of newspapers, magazines and broadcasting stations. Freelance writers like book authors were often denied the protection. The court ruled a book author clearly had a right to invoke the 1A privilege. "The journalist's privilege is designed to protect investigative reporting regardless of the medium to report the news to the public," Judge Norris.

Closed Proceedings -There is a presumption courts will be open! Make sure the determination of guilt or innocence of the defendant is done in transparent way, not behind the scenes Richmond Newspapers v. Virginia -U.S. Supreme Court, 1980 -Ruled there was a right under both common law and the U.S. Constitution (1st Am.) for the public and the press to attend a criminal trial Press-Enterprise v. Riverside Superior Court -1986, Supreme Court extends Richmond to include other judicial proceedings and records -Civil proceedings and other proceedings, records and documents (like when someone files a lawsuit or motion)! -Established the Press-Enterprise Test, which judges must apply before deciding whether a proceeding or record can be closed. There is a presumption of openness, but under certain circumstances this presumption be outweighed... -Multi-part, complex/complicated test! History-and-logic (or experience-and-logic) test -Determines if a proceeding or document is "presumptively open" 1. Has this kind of hearing (or document) traditionally and historically been open to the press and public? OR Example: Filing a motion to dismiss, has historically been accessible by public and press (presumed open) 2. Will public and press access to this hearing play a positive role in the functioning of the judicial process? -Legitimacy of judicial process related to the public process of open access (was a judge acting fairly, leads to positive conditions to the administration of the law)! BUT it might impact the fair outcome of the trial - may close the proceeding or document to ensure this does not happen... If the proceeding or document is deemed to be "presumptively open," burden shifts to the defendant [defense attorney] or government [prosecutor] to convince the court there is good reason to close the proceeding or seal the document: 1. Does closure advance an overriding interest that is likely to be harmed if the proceeding remains open or the court permits access to the document? (Harm may come if the proceedings/document remains open) 2. Is there a substantial probability that this interest will be harmed if the hearing or document is open to the press/public? -Can't just be "This could be embarrassing to a party" - must be that some exposure would harm the judicial process! "Substantial probability" is a high threshold! If proven, judge must: 3. Consider whether there are reasonable alternatives to closure -Example: Redactions, releasing or opening parts but not others! Access to parts needed but not to what the public or press do not need! If no viable alternatives, judge must: 4. Narrowly tailor the closure so there is an absolutely minimum of interference with rights of press/public -Example: Testimony from a minor, close the proceeding while they give testimony but open during other portions (narrowly tailor) -Restrict no more access than is absolutely necessary! (think about public meetings under the Government in Sunshine Act or state sunshine acts - going into executive session at certain points, going back to public session after) Finally, judge must: 5. Make evidentiary findings to support decision -The court's rationale and reasons on record - records it was closed and why - transparency behind the trial -Disclosure by the judge at the end of the process! Once a trial is over and appeal takes place, appellate court will question whether the trial court appropriately closed the case or not! Therefore, closing a proceeding and preventing the release of a document is hard to do. WHY? -Appeal process! Mitigate tyranny at the local court level - judges may administer without open scrutiny if this appeal process was not in place - could result in unfair trials THREADING THE NEEDLE - prevent tyranny but some cases (documents or proceedings) need not be under public scrutiny (Divorce and child custody cases - contentious personal matters, seal documents or close proceedings - seems necessary in these cases, could mess with privacy of individual people)

X

Exemption 3: Statutory Exemption Matters specifically exempted from disclosure by statute (other than section 552b of this title), if that statute - (A) (i) requires that matters be withheld from the public in such a manner as to leave ... d... on the issue; or (ii) establishes p... c... for withholding or refers to p... t... of matters to be withheld; and (B) if enacted after the date of enactment of the ... ... Act of 2009, specifically c... to this paragraph!!! Exemption was amended in 2009 to add an extra requirement, mandating that statutes enacted after the date of the ... ... Act of 2009 (10/28/2009) must specifically ... to Exemption 3 to qualify under Exemption 3 -The amendment imposes an additional hurdle for exemption for any new laws enacted today -Statutes must satisfy both parts A and B to qualify for nondisclosure under Exemption 3 -Exemption designed to protect from disclosure information r... or p... to be kept s... by other federal laws Example of records falling in this exemption (a wide range): -Census Bureau records -Public utility information -Trade secrets -Patent applications -Tax returns -Bank records -Veterans benefits -Documents held by both ... and National Security Agency Court generally ask three questions when determining whether Exemption 3 applies to a specific record or document: 1. Is there a specific ... that a... or r... the withholding of information? 2. Does the ... designate s... ... of information or outline s... c... for information that may be withheld? 3. Does the record or information that is sought fall within the c... of information that may be ...? If all three questions are answered yes, then disclosure can be legally denied Through congressional action and numerous court rulings, the ... has managed to use this exemption to almost completely shield its ... from ... s... -Congress voted to exempt all ... ... f... from release under FOIA (1984); Supreme Court ruled records relating to ...-funded research from 1952-66 at 80 universities to study the effects of mind-altering substances on humans were off-limits to public inspection (1985) A lawyer named Sims wanted to see the names of the schools and individuals who had participated in the research projects. The agency argued the names were exempt from disclosure because, under 1947 law, the names of in... s... cannot be disclosed by ... Supreme Court agreed and ruled the director of the spy agency had broad authority under the 1947 National Security Act to protect all ... of information, c... or not Note the statute in this case would be the 1947 National Security Act Example: Appellate court held the Bureau of Alcohol, Tobacco, Firearms and Explosives didn't need to produce to the City of Chicago records held in an ATF database about the sale and recovery of firearms under Exemption 3 The court held the provisions in a 2005 federal appropriations act (our statute in question) specifying the ATF's firearms databases were "immune from the legal process and intended to cut access to the databases for any reason not related to law enforcement" Chicago wanted records not for law enforcement but to help in civil action filed against gun makers and dealers for creating a public nuisance Example: Appellate court rejected an attempt by EPIC to obtain Trump's tax records from the IRS through a FOIA request. IRS invoked Exemption 3, claiming a section of the Internal Revenue Code (our statute in question) mandates tax returns and return information are confidential unless fall into one of thirteen categories of exceptions. Trump's tax returns did not fall into one of these exceptions "The case presented question of whether a member of the ... (EPIC - a nonprofit organization) can use a FOIA request to obtain an unrelated individual's tax records without his consent. With certain limited exceptions - all ... here - the answer is ... No one can demand to inspect another's tax records. And the Internal Revenue Code's confidentiality protections extend to ... taxpayer and ... alike"

3. Statutory Exemption Exemption #3: Matters specifically exempted from disclosure by statute (other than section 552b of this title), if that statute - (A) (i) requires that matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph. This exemption was amended in 2009 to add an extra requirement, the portion set forth after "B" above mandating that statutes enacted after the date of the OPEN FOIA Act of 2009 (October 28, 2009) must specifically cite to Exemption 3 of the FOIA to qualify under Exemption 3. The amendment thus imposes an additional hurdle for exemption for any new laws enacted today. Such statutes must satisfy both part (A) and part (B) to qualify for nondisclosure under Exemption 3. This exemption is designed to protect from disclosure information required or permitted to be kept secret by scores of other federal laws. A wide range of records fall under this exemption, including Census Bureau records, public utility information, trade secrets, patent applications, tax returns, bank records, veterans benefits, and documents held by both the CIA and National Security Agency. Courts generally ask three questions when determining whether Exemption 3 applies to a specific record or document: 1. Is there a specific statute that authorizes or requires the withholding of information? 2. Does the statute designate specific kinds of information our outline specific criteria for information that may be withheld? 3. Does the record or information that is sought fall within the categories of information that may be withheld? If all three questions are answered, yes, disclosure can be legally denied. Via congressional action and numerous court rulings the CIA has managed to use this exemption to almost completely shield its operations from public scrutiny. In 1984, Congress voted to exempt all CIA operational files from release under FOIA. In 1985, Supreme Court ruled records relating to CIA-funded research from 1952-66 at 80 universities to study the effects of mind-altering substances on humans were off-limits to public inspection. A lawyer named Sims wanted to see the names of the schools and individuals who had participated in the research projects. The agency argued the names were exempt from disclosure because, under 1947 law, the names of intelligence sources cannot be disclosed by CIA. The Supreme Court agreed and ruled the director of the spy agency had broad authority under the 1947 National Security Act to protect all sources of information, confidential or not. An appellate court held the Bureau of Alcohol, Tobacco, Firearms and Explosives did not need to produce, per Exemption 3, to the City of Chicago records held in ATF databases about the sale and recovery of firearms. The court held the provisions in a 2005 federal appropriations act specifying the ATF's firearms databases were "immune from the legal process" and "not subject to subpoena or other discovery in any civil action" and were intended to "cut off access to the databases for any reason not related to law enforcement" Chicago wanted the records not for law enforcement but to help in a civil action it filed against gun makers and dealers for creating a public nuisance. In 2018, an appellate court rejected an attempt by the Electronic Privacy Information Center (EPIC) to obtain President Trump's tax records from the Internal Revenue Service (IRS) through a FOIA request. In denying the request, IRS invoked Exemption 3 of FOIA, claiming a section of the Internal Revenue Code mandates that tax returns and return information are confidential unless they fall into "one of thirteen tightly drawn categories of exceptions" Trump's tax returns, the IRS said, did not meet one of those exceptions. The U.S. Court of Appeals for the D.C. agreed in Electronic Privacy Information Center v. Internal Revenue Service, ruling EPIC requested records exempt from disclosure under FOIA. Judge Henderson said case presented question of whether a member of the public - here, EPIC, a nonprofit organization - "can use a FOIA request to obtain an unrelated individual's tax records without his consent. With certain limited exceptions - all inapplicable here - the answer is no. No one can demand to inspect another's tax records. And the Internal Revenue Code's confidentiality protections extend to ordinary taxpayer and President alike."

Element #3: Legitimate Public Concern and Newsworthiness The typical result of most private facts cases is a judge or appellate tribunal will rule a ... ... in... in the s... ... or the ... outweighs any ... the publication might have caused! ... ... trumps ... -During past 100 years, ... ... has been defined broadly. Most judges set the ... ... bar pretty low and focus not on what people s... be interested in reading or hearing but on what readers and listeners a... find interesting. The narrow definition of public concern defined in Times v. Sullivan for libel rule has not been applied in privacy rulings -An 84-year-old case, still often cited by jurists, set the standard for this regard Sidis v. F-R Publishing Co. (1937) Article written by Jared Manley (pen name for James Thurber) about William James Sidis. Piece published in New Yorker magazine and provoked one of the nation's most celebrated IOP lawsuits "Where Are They Now?" "April Fool!" An 11-year-old Sidis spoke to professors and advanced math students from Harvard. Distinguished professor moved to predict to reporters Sidis would grow up to be a great mathematician, famous leader in the world of science Sidis lives today, at age 39, in a hall bedroom of Boston's shabby south end. Gets great, ironic enjoyment out of leading a life of wandering irresponsibility (series of mundane jobs and rejection in career of science or math). Never stays in one office long enough because employers or workers soon find out he was the boy wonder and cannot tolerate it "It's strange, but, you know, I was born on April Fool's Day" In 1937, New Yorker magazine published story on child prodigy who failed to fulfill the promise many predicted for him. Former prodigy sued for IOP -Federal appeals court ruled while the story might have ... the man, the public enjoyed reading about the p.../.../... of their neighbors. "When these are the m... of the community, it would be unwise for court to bar their expression in the newspapers of the day" Since that time courts have ruled there was ... ... or ... ... ... in stories about extramarital affairs arranged in a blackmail scheme; two undercover cops who were charged but later cleared of sexual assault; sterilization; man treated for substance abuse at hospital; 12-year-old giving birth; personal activities of body surfer -New York court: even TV report celebrating warm spring day that featured video of man and woman holding hands had ... ... ... (the film explored the p... a... on r..., a subject that was newsworthy) The ... argument will not always carry the day! -11th District, Hustler magazine posted 20-year-old nude photos of female professional wrestler, Benoit, who was murdered by her husband -... defense did not shield the publication from privacy lawsuit brought by mother ('because the photos accompanied a short biographical piece on woman, was ...'). The court disagreed - had no relationship with what was ... (her murder) and the biography was merely ... to the publication of the nude photographs Bollea (Hulk Hogan) v. Gawker (2016) Bollea won massive $140 million jury verdict ($55 million for economic damage, $60 for emotional distress, $25 punitive damages) in Florida against Gawker (celebrity gossip Web site) 2006, Bollea had sexual encounter with Clem (then-wife of his best friend) Encounter took place at Clems' house and recorded on video, Bollea claimed he had no knowledge or consent of being recorded 2012, Gawker published article discussing and commenting on America's obsession with celebrity sex tapes, article included 1:40 excerpt from encounter Assuming the contents of the tape (shot in private bedroom) were private, and assuming a ... ... in Bollea's position would find the publicity given by Gawker to the contents of the tape ... ..., were the contents of the tape ...? Florida jury found the images ... ... ...! -Gawker argued ... because Bollea was a well-known celebrity and openly talked about his sex life in the media the contents of the tape were ... -Experts for Bollea argued while the existence of a sex tape involving Bollea might be ..., watching the contents of the tape itself wasn't 2016, Gawker filed motion for stay of execution of judgment awaiting appeal. Next day, Gawker filed for bankruptcy protection and put itself up for sale (assets acquired by Univision, but did not include flagship Gawker site which shut down) Often asked questions about legitimate public concern or newsworthiness 1. Does the ... in which the story is p... have an impact on whether it has a legitimate public interest? S... treatment of a story usually doesn't remove the protection of newsworthiness! -Story on two children who suffocated in an abandoned refrigerator (the ... in which the story was written wasn't relevant to whether the article was protected by constitutional guarantees of free speech/press) -Horrible image of automobile accident with bloodied and battered body of one victim visible and identifiable (many things which may be d... or lacking in g... ... aren't actionable!) -Video tape of woman who was raped by her husband and did not know, found its way to TV station after police promised to keep it confidential (video was related to a matter of ... ... ... [husband's prosecution] the s... n... of the video did not make it any less newsworthy) 2. Does the law of privacy protect what are called ... ... ..., people who are pushed into the public spotlight through no fault of their own? This protection normally ... apply in privacy action! -Kentucky Supreme Court "There are times when one, whether willing or not, becomes an actor in an occurrence of public or general interest. The individual loses much of their right to privacy" -Man arrested on suspicion of burglary but later released when police admitted arrested wrong man, TV report was not an IOP (a ... event!) -Florida court, a woman who had her nearly naked body published in newspaper could not sue for IOP (though there were many revealing photos taken, the one published revealed little more than could be seen had the woman worn a bikini - just because the story or photo may be ... or d... to the plaintiff doesn't mean the paper cannot publish what is otherwise ...) 3. Do people who are closely associated with public persons also lose elements of their right to privacy? Not a lot of court decisions on this, but current answer is ...! -10th Circuit, hikers find body of man near trail, police said death looked autoerotic - story reports included information that reflected on intimate details of the man's marital relationship, family members sued. Circuit affirmed dismissal of complaint saying the limits of privacy did not block the revelation of information of a spouse's behavior that reflected on the marital relationship -New York court, plaintiff's husband secretly committed plaintiff to private psychiatric facility (few knew of the commitment) but other patient at facility, Nussbaum, was in national news for many months - photographer captured photo of Nussbaum while plaintiff was standing next to her. Plaintiff sued for IOP but lost (Nussbaum story still had considerable ... ... and only way plaintiff could win was to demonstrate her photo bore no real relationship to the article and photo, which she could not do) 4. How far into the private life can the press go when discussing a newsworthy person? Courts began to enunciate guidelines for the press in the last quarter of 20th century. These limits are ... but nevertheless real! Virgil v. Sports Illustrated Sports Illustrated published long article on body surfer Virgil. Reporter asked Virgil why he seemed so willing to risk life and limb in a sport many regarded as dangerous. Virgil replied he lived his life like he practiced his sport, outlined some of his personal traits that seemed reckless/stupid (extinguish burning cigarettes with mouth, dive headfirst down flight of stairs, eat live insects) -When story appeared, Virgil sued. Agreed his public life was fair game but embarrassing aspects of his private life should not be reported. The court disagreed A m... and s... p... into one's life for its ... ... is the opposite of ... (what Virgil v. Sports Illustrated defined as the line between private and public information) If the magazine had published a story that described this weird man who lived in California and ate bugs and dove down stairs, very likely would be IOP. BUT the personal details were added to a story to explain Virgil's ... life - though embarrassing, provided context to the story of his ... p... What courts often look for in these kinds of cases is a .../n... between the admittedly ... and ... ... AND the ... s... of the story How far the press can go in reporting the private life of public persons often depends not only on ... is said (how private the info is) but also on ... the material was used When an individual's ... life is explained, many parts of that person's ... life are of ... ... ... Newsworthiness in a Nutshell - factors for legitimate public concern Courts often consider three factors in determining if private facts are of legitimate public concern (newsworthy) 1. The s... ... of the private facts published 2. How deeply the disclosed private facts cut into o... ... a... 3. The extent to which the plaintiff ... r... to a position of p... n... Newsworthiness measured along sliding scale of competing interests: individual's right to keep ... ... from public's gaze versus the public's right to ...

Legitimate Public Concern and Newsworthiness Previous rulings are not the typical results of most private facts cases. There are instances when a court will rule private facts have been published and the revelation of these facts are highly offensive to a reasonable person. More often than not though a judge or appellate tribunal will rule a legitimate public interest in the subject matter or the plaintiff outweighs any embarrassment the publication might have caused! Public interest trumps offensiveness. And during the past 100 years, public interest has been broadly defined. Most judges set the public interest bar fairly low and focus not on what people should be interested in reading/hearing, but on what readers/listeners actually find interesting. The relatively narrow definition of public concern fashioned by the courts in applying New York Times Co. v. Sullivan libel rule has not been applied in privacy rulings. An 84-year-old case, still often cited by jurists, set the standard in this regard. Sidis v. F-R Publishing Co. Classic Example of 'Legitimate Public Concern' Article written by Jared L. Manley (pen name for James Thurber) about William James Sidis. The piece was published in New Yorker magazine on August 14, 1937 and provoked one of the nation's most celebrated IOP lawsuits (Sidis v. F-R Publishing Co.) "Where Are They Now?" "April Fool!" January 1910, about a hundred professors and advanced math students from Harvard gathered in lecture hall to listen to speaker Sidis. He had never addressed an audience before, was abashed and a little awkward at the start. His listeners had to attend closely, he spoke in a small voice that didn't carry well, and he punctuated his talk with nervous, shrill laughter. The speaker wore black velvet knickers. He was 11. When it was all over, the distinguished Professor Comstock of MIT was moved to predict to reporters, who had listened in profound bewilderment, that young Sidis would grow up to be a great mathematician, a famous leader in the world of science. The next section explained how Sidis, a small child, had become a guinea pig for his psychologist father, who used experimental techniques to educate his son when he was a little more than a baby. Manley goes on to describe his education, his extreme efforts to hide from the spotlight of publicity, his series of mundane jobs and his rejection of career in science or math. "William James Sidis lives today, at age of 39, in a hall bedroom of Boston's shabby south end. He seems to get a great and ironic enjoyment out of leading a life of wandering irresponsibility after a childhood of diligent regiment. Sidis is employed now, as usual, as a clerk in a business house. He said he never stays in one office long because his employers or fellow-workers soon find out he is the famous boy wonder, and he can't tolerate a position after that. 'The very sight of a mathematical formula makes me physically ill,' he said.' Manley relates that Sidis has become a passionate collector of streetcar transfers, he enjoys the study of certain aspects of the history of Native Americans and he is writing a treatise on floods. "His visitor [Manley] was emboldened at last to bring up the prediction, made by Professor Comstock, back in 1910, the little boy who lectured that year on the fourth dimension to a gathering of learned men would grow up to be a great mathematician, a famous leader in the world of science. 'It's strange,' said Sidis, with a grin, 'but you know, I was born on April Fool's Day.' In 1937, New Yorker magazine published a story about a child prodigy who had failed to fulfill the promise many had predicted for him. The prodigy, the nearly 40, sued for IOP. A federal appeals court ruled while the story might have embarrassed the man, the public enjoyed reading about the problems, misfortunes, and troubles of their neighbors and members of the community. "When such are the mores of the community, it could be unwise for a court to bar their expression in the newspapers, books, and magazines of the day" wrote Judge Clark. Since that time courts have ruled there was public interest or legitimate public concern in stories about how two lawyers used extramarital affairs they arranged in a blackmail scheme; in news reports that have revealed the names of two undercover police officers who were charged with but later cleared of sexual assault; in the sterilization of an 18 year old girl; in a young man being treated for substance abuse at a hospital; in a 12-year-old giving birth to a child; and in the personal activities of a body surfer. A New York court ruled even a TV report celebrating a warm spring day that featured video of a man and woman walking hand in hand on Madison Avenue had legitimate public interest. The couple objected to the story because he was married to another woman, and she was engaged to be married to another man. The court said the film explored the prevailing attitudes on romance when it showed people behaving in this fashion, a subject that newsworthy. But the newsworthiness argument will not always carry the day! 11th District ruled in 2009, Hustler magazine published the 20 year old nude photos of a female professional wrestler named Nancy Benoit who had been murdered by her husband - also a professional wrestler - the newsworthiness defense didn't shield the publication from a privacy lawsuit brought by her mother under GA state law. Attorneys for Hustler argued because the photos accompanied a short biographical piece about the woman, they were newsworthy. The court disagreed. The publication of the brief biographical story did not 'ratchet otherwise personal protected photographs into the newsworthiness exception.' The appellate court added the decades-old nude photos of Benoit that Hustler published had no relationship whatsoever to what was newsworthy (her murder) and Hustler's 'brief biography of Benoit's life even with its reference to her youthful pursuit of modeling, is merely incidental to its publication of her nude photographs. Therefore, the biographical piece cannot suffice to render the nude photos newsworthy! Hulk Hogan v. Gawker Wrestling with newsworthiness over a sex tape In March 2016, Bollea (Hogan) won a massive $140 million jury verdict ($55 million for economic damages, $60 million for emotional distress and $25 million for punitive damages) in Florida against Gawker, a celebrity-gossip Web site. In 2006, Bollea had sexual encounter with Clem, the then-wife of Bollea's best friend, nationally syndicated radio show host Bubba the Love Sponge Clem. Clem legally changed name in 1999. The sexual encounter took place at the Clems' house and was recorded on video. Bollea claimed the encounter was recorded without his knowledge or consent. In 2012, Gawker.com published an article discussing and commenting on America's obsession with celebrity sex tapes. The article included a 1:40 excerpt from the 30 minute recording of Bollea and Clem's sexual encounter. Assuming the contents of the tape, shot in a private bedroom, were private, and assuming a reasonable person in Bollea's position would find the publicity given by Gawker to the contents of the tape highly offensive, the case boiled down to one key question: Were the contents of the sex tape - the actual images of Bollea having sex - newsworthy? Florida jury found the images of Bollea having sex were not newsworthy. We know because the jury ruled for Bollea, and a plaintiff can only win a case for public disclosure of private facts if the info or facts published are NOT of legitimate public concern. Gawker argued unsuccessfully to the jury because Bollea was a well-known celebrity and because he openly talked about his sex life in the media (including Howard Stern's radio show) the contents of the tape were newsworthy. Gawker argued 'the personal life, romantic affairs, and explicit details of the sex life of plaintiff Hogan had been the subject of widespread media coverage and public discussion.' In contrast, experts for Bollea, argued while the existence of a sex tape involving Bollea might be newsworthy, watching the contents of the tape itself was not. In June 2016, Gawker filed a motion for a stay of execution (temporarily suspend the execution of a judgment) of the judgment pending appeal. The next day, Gawker filed for bankruptcy protection and put itself up for sale. Gawker's assets were acquired by Univision Communications for $135 million at a bankruptcy auction in August 2016. Sale included six Gawker sites. The sale didn't include the company's flagship site Gawker, which was shut down. On Nov. 2, 2016, Gawker Media and Bollea reached $31 million settlement. Gawker also agreed to forgo its appeal, and three articles from Gawker.com were taken down, including the one involving Bollea. The rest of the Gawker Media archive remains online. Some often asked questions about legitimate public concern, or what the courts sometimes call newsworthiness... 1. Does the manner in which the story is presented have an impact on whether it has a legitimate public interest? In spite of Barber case, sensational treatment of a story doesn't usually remove the protection of newsworthiness. The parents of two young children who had suffocated in an abandoned refrigerator said the sensational way the story was presented was as objectionable as the story itself. However, the court ruled the manner in which the article was written WAS NOT RELEVANT to whether the article was protected by the constitutional guarantees of free speech and free press - which it was. In another case, a Boston newspaper published a horrible picture of an automobile accident in which the bloodied and battered body of one victim was clearly visible and identifiable, and the court rejected the plaintiff's claim. The Mass. Supreme Court noted, Many things which are distressing or may be lacking in propriety or good taste aren't actionable. A woman told police she was raped by her husband while she was unconscious and didn't know it happened until she found a videotape of the incident. She gave the tape to police, who promised it would be kept confidential and used only for law enforcement purposes. The tape found its way to a TV station, which broadcast segments of it when the husband was arrested for other, alleged sexual assaults. The woman sued for publication of private facts. But the courts rejected her lawsuit, ruling the video was RELATED to a matter of legitimate public concern - the prosecution of her husband. The court said the sensitive nature of the video didn't make it any less newsworthy. 2. Does the law of privacy protect what are called involuntary public figures, people who are pushed into the public spotlight through no fault of their own? While the so-called involuntary public person receives enhanced protection in libel law, this protection doesn't normally apply in privacy actions! 83 years ago, KY Supreme Court ruled although the right of privacy protected the right of a person to live their life in seclusion, without being subject to undesired publicity, there are times when 'one, whether willing or not, becomes an actor in an occurrence of public or general interest' At this point, the court noted, the individual loses much of their right to privacy. A KS court ruled a TV report about a young man who had been arrested on suspicion of burglary, but who was later released when police admitted they had arrested the wrong man, was not an IOP. The court ruled the plaintiff was involved in a newsworthy event, and the public had a right to be informed about the event. "This was true even though his involvement was purely involuntary and against his will" 1982, FL court ruled a woman who had her nearly naked body published in a newspaper couldn't sue for IOP. The woman was abducted by her husband from her workplace and held at gunpoint. The police were alerted and surrounded the apartment. The woman's husband 'forced her to disrobe in effort to prevent her from escaping. Upon hearing a gunshot, police stormed the apartment and rushed woman to safety. The woman's picture was taken clutching a dish towel to her body to conceal her nudity. Though there were many revealing photos taken, the one published revealed little more than could be seen had the woman been wearing a bikini. The court wrote, 'Just because the story and the photo may be embarrassing or distressful to the plaintiff doesn't mean the paper cannot publish what is otherwise newsworthy. 3. Do people who are closely associated with or related to public persons also lose elements of their right to privacy? Although there haven't been a lot of court decisions based on this question, the current answer seems to be YES. People whose lives intersect with famous, infamous or other newsworthy individuals also lose some of their privacy! Story published in a UT newspaper in 1997 said hikers had found the body of a man near a dirt trail. Police said the death looked like one of those autoerotic things. When murder charges were subsequently filed, the story was widely reported. Family members sued saying the reports contained info that reflected upon intimate details of the marital relationship. The 10th Circuit affirmed the dismissal of the complaint saying while it was almost impossible to define the limits of the right of privacy, it didn't block the revelation of info of a spouse's behavior that reflected on the martial relationship. "Any other conclusion would stretch the right of privacy beyond any reasonable limits" A NY court came to similar conclusion 9 years earlier. Plaintiff's husband had secretly committed the plaintiff to a private psychiatric facility. Few of her friends and relatives knew of the commitment. Another patient at the facility, Nussbaum, had been in the national news for many months as the adoptive mother of a 6-year-old girl who had died from child abuse. A photographer secretly snapped a photo of Nussbaum while the plaintiff Howell was standing next to her. Howell wasn't identified in the photo that was published in a NY newspaper. She sued for IOP, but lost. The court said the Nussbaum story still had a considerable public interest and the only way Howell could win was to demonstrate her photo bore no real relationship to the article and photo. But the court said she couldn't do this! She was in the wrong place at the wrong time, but this didn't create liability. 4. How far into the private life can the press go when discussing a newsworthy person? Courts began to enunciate guidelines for the press in cases decided in last quarter of 20th century. These limits are narrow, but nevertheless real! Important case: In early 1970s, Sports Illustrated published long article on a body surfer named Mike Virgil. At the time, body surfing was a relatively unknown sport outside the surfers in Southern California and other beaches. Reporter Curry Kirkpatrick asked Virgil why he seemed so willing to risk life and limb in a sport many regarded as extremely dangerous. Virgil replied he lived his life pretty much as he practiced his sport and outlined some of his personal traits that most would regard as reckless, if not stupid (he would extinguish burning cigarettes with his mouth, dive headfirst down flights of stairs, eat live insects). When the story appeared, Virgil sued. He agreed his public life was fair game for the press, but the embarrassing aspects of his private life shouldn't have been reported. The court disagreed! The appellate court ruled the line between private and public information "is to be drawn when the publicity ceases to be the giving of info to which the public is entitled, and becomes morbid and sensational prying into the private life for its own sake." So, a morbid and sensational prying into one's life for its own sake is the opposite of newsworthiness! If the magazine had published a story that described this weird man who lived in California who ate bugs and dived down stairs, it was very likely this would have been an IOP. But the personal details were added to a story to try to explain Virgil's public life. Although they were embarrassing, they provided IMPORTANT CONTEXT to the story of his public persona. What courts often look for in these kinds of cases is a connection/nexus between the admittedly private and embarrassing info and the newsworthy subject of the story. How far the press can go in reporting the private life of public persons often depends not only on WHAT is said - how private the info is - but also on WHY the material was used. When an individual's public life is explained, many parts of that person's private life are of legitimate public concern. Newsworthiness in a nutshell - factors for legitimate public concern Courts often consider THREE FACTORS in determining if private facts are of legitimate public concern (newsworthy). "A morbid and sensational prying into one's private life for its own sake" is the opposite of what is newsworthy or of legitimate public concern. 1. The social value of the private facts that were published 2. How deeply the disclosed private facts cut into ostensibly (apparent/seemingly) private affairs 3. The extent to which the plaintiff (individual whom the private facts pertain) voluntarily rose to a position of public notoriety Ultimately, as one court observed, newsworthiness is measured along a sliding scale of competing interests: an individual's right to keep private facts from the public's gaze versus the public's right to know.

The Contempt Power Those who work in the media and run a... of the j... o... or the commands of l... c... can quickly feel the sharp sting of a contempt citation. Reporters who r... to respond to a s..., news organizations that r... to pay a l... or ...-of-... j... - these examples and more can be held in contempt! Example: Former USA Today reporter Locy was held in contempt by a federal judge and fined $5,000/day after she did not reveal her sources for stories connecting scientist Hatfill to a series of anthrax-laced letters. Under the contempt ruling, the fines added up for every day that Locy refused to give up her s..' i..., and Locy was personally liable for paying the fines (the contempt order precluded her from accepting reimbursement from her employer or others to satisfy the monetary sanction) -Hatfill had sued the federal government under the Privacy Act, claiming his privacy was violated by government employees who deliberately leaked his name to certain journalists as a person of interest in the investigation into who sent the letters -Hatfill s... Locy seeking to find out who their g... s... were. Locy r... to r... her s..., claiming she couldn't remember them -U.S. District Judge Walton rejected Locy's argument that her r... to disclose the i... of her s... was sanctioned by either the ... ... or a ...-law privilege she requested that Walton recognize. Locy escaped paying a steep contempt fine, however, when the government agreed later in 2008 to pay Hatill $5.8 million to settle his case; U.S. Court of Appeals for D.C. vacated Judge Walton's contempt order and dismissed the case as moot due to settlement Example: Federal judge held a radio station owner in contempt and fined him $10k/day until he turned himself in. The judge considered the radio station owner a fugitive from justice after he didn't in... c...-m... steps to transfer control of his radio stations to another owner and then missed a d... to surrender to authorities. The dispute started almost five years earlier after a jury found that radio stations he owned violated copyright law by playing songs without properly licensing them Kinds of Contempt: Varieties of contempt are recognized through c... l... and efforts have been made to l... these varieties, but these efforts have been un...! There is frequently d... among courts about what kinds of behavior constitute what kinds of contempt! Judges can use the contempt power for two purposes: 1. A court can use the contempt power to protect the r... of a l... in a l... d... -A reporter who refuses to reveal the name of a source c... to the d... of a person charged with larceny could endanger the person's r... to a f... t...; The contempt power can be used to force the reporter to testify -A broadcasting station that refuses to pay the plaintiff a judgment after losing a libel case endangers the r... of the injured party to r... their r...; The contempt power can be used to force the broadcaster to pay the judgment 2. The contempt power can be used to v... the l..., authority of the c..., or power of the j... -A defendant who refuses to stop t... during a trial or an attorney who continually ignores judicial warnings against t... to r... about the merits of the case can be punished with a contempt citation. So can a writer who carelessly and aggressively c... a c... r... in a newspaper editorial Judges who use the contempt power to protect the r... of l... usually impose an I... sentence against the target of contempt Example: A judge can jail a reporter u... they are w... to reveal the name of the critical source -The court can fine the broadcaster a specific amount e... d... u... the civil judgment is paid The punishment is used to c... the target of the citation to take some a...! Judges who use the contempt power to v... the l..., authority of the c..., or power of the j... will generally impose a D... sentence -A s... fine ($25k) or jail sentence (30 days). The sentence is strictly p...; no c... is implied! Contempt and the Press The contempt power is b... and touches all manner of persons who run a... of a judge. Journalists are among those at jeopardy. What kinds of situations are most likely to result in contempt problems for the press? a. Failure to p... a j... in a l... or ...-of-... case! b. Failure to o... a c... o... Example: A judge rules no photos may be taken in the courtroom, or orders reporters not to publish stories about certain aspects of a case. If these orders are d..., a contempt citation may result! c. Refusal of a journalist to d... the i... of a s... or to testify in c... or before a ... j... d. C... c... about the c... Example: Might be an editorial critical of the court or a cartoon mocking the judge. In rare instances, contempt citations have been used to punish the press in such cases. The Supreme Court has said, for c... of a c... to be punished, the c... must pose a "c... and p... d... to the a... of j..." e. T... with a j... Example: A reporter tries to talk with j... during a trial, asking questions about their views on the defendants' guilt or innocence These situations are some of the more common ways members of the press might become involved in a contempt problem, but this list is by no means e...! Collateral Bar Rules When a journalist violates a c... o..., a contempt citation is probably forthcoming. But what if the c... o... appears to be i... or u... on its face? Can a journalist still be held in contempt of court for violating such an order? The answer is ..., there is no c... r... on this matter at present! The legal concept involved is called the collateral bar rule, a rule that requires all c... o..., even those that appear to be u... and later deemed u... by an a... c..., must still be o... until they are o...! -A person who violates a c... o... cannot collaterally challenge the order's c... as a defense to the contempt charge. Instead, that person must o... the order and hope to get it o... on a...! This rule has RARELY been invoked against the p..., but... -U.S. Court of Appeals ruling from 1972 serves as stark reminder of its meaning! -Reporters Adams and Dickinson of the Baton Rouge Morning Advocate and State Times ignored what they believed was an u... c... o... forbidding them from publishing information about what took place in an open federal court hearing -The pair (each fined $300) a... the order and the 5th Circuit in U.S. v. Dickinson ruled the trial judge's actions were clearly u...! At the same time, the court u... the contempt citations, ruling a person may not, with impunity, violate a c... o... that later turns out to be in...! While this rule, sometimes called the D... R... seems grossly u..., there is a logic to it! -The court system would c... to o... as it does if people had a choice of whether/not to o... a c... o...; without the power to c... behavior, judges would be unable to d... their d... and r..., and courts would become mere boards of a... that issue a... o...! -Judge in Dickinson, "Newsmen are c... too. They too may sometimes have to w..." Only one important collateral bar case involving the press has occurred since 1972 (Dickinson) -A federal judge in RI found the Providence Journal and its editor, Hauser, in contempt of court for violating the judge's o... forbidding the publication of any information that had been obtained by the government from an illegal FBI wiretap. But the 1st Circuit ruled the trial judge's o... was transparently i... and could not serve as a basis for a contempt citation -The appellate court added, however, in the future publishers and broadcasters should first try to get an a... r... before v... a c... o... -With the 5th Circuit and the 1st Circuit somewhat in d... about this matter, the Supreme Court agreed to hear an a... But after reading briefs and hearing arguments, the Supreme Court d... the a... because the special prosecutor who handled the appeal for the government had failed to obtain proper authorization to petition for a writ of certiorari -At the ... level the issue remains u...! But courts in WA and IL have f... r... the r... of the Dickinson case, and courts in AZ, CA, MA, and AL have considered the matter but have issued a... r... Remember: -Power of a judge to punish for contempt is a remnant of power of English royalty -Contempt is used to protect both the r... of p... p... who are l... matters in the courts and to punish a wrong committed against the c... i...! Some limits have been placed on the contempt power -Legislatures often restrict the k... of s... a judge may impose for contempt or require a j... t... before a c... c...! -Supreme Court has ruled before a c... of a c... may be punished by contempt, it must be shown criticism created a c... and p... d... of the likelihood of interference with the a... of j...! -In some jurisdictions appellate courts have ruled people must obey even to u... c... o... (Dickinson rule or collateral bar rule, 5th Circuit)

The Contempt Power Those who work in media and run afoul of judicial orders or the commands of legislative committees can quickly feel the sharp sting of a contempt citation. Reporters who refuse to respond to a subpoena, news organizations that refuse to pay a libel or invasion-of-privacy judgment - these examples and more can be held in contempt. Example: Former USA Today reporter Toni Locy was held in contempt by a federal judge in 2008 and fined $5,000/day after she did not reveal her sources for stories connecting scientist Hatfill to a series of anthrax-laced letters sent in late 2001. Under the contempt ruling, the fines added up for every day that Locy refused to give up her sources' identity, and Locy was personally liable for paying the fines (the contempt order precluded/prevented her from accepting reimbursement from her employer or others to satisfy the monetary sanction). Hatfill had sued the federal government under the Privacy Act, claiming his privacy was violated by government employees who deliberately leaked his name to certain journalists as a person of interest in the investigation into who sent the letters. Hatfill subpoenaed Locy, as well as a number of other journalists, seeking to find out who their government sources were. Locy refused to reveal her sources, claiming she couldn't remember them. U.S. District Judge Walton rejected Locy's argument that her refusal to disclose the identity of her sources was sanctioned by either the 1A or a common-law privilege she requested that Walton recognize. Locy escaped paying a steep contempt fine, however, when the government agreed later in 2008 to pay Hatill $5.8 million to settle his case before an appellate court could rule on the merits of Hatfill's efforts to force Locy to testify. In 11/2008, a three-judge panel of U.S. Court of Appeals for D.C. vacated Judge Walton's contempt order and dismissed the case as moot due to settlement. Example: 02/2021, federal judge held a radio station owner in contempt and fined him $10k/day until he turned himself in. The judge considered the radio station owner, Stolz, a fugitive from justice after he didn't initiate court-mandated steps to transfer control of his radio stations to another owner and then missed a deadline to surrender to authorities. The dispute involving Stolz started almost five years earlier after a jury found that radio stations he owned violated copyright law by playing songs without properly licensing them. Kinds of Contempt Varieties of contempt are recognized through common law, and efforts have been made to label these varieties. But these efforts have been unsatisfactory; there is frequently disagreement among courts about what kinds of behavior constitute what kinds of contempt. Judges use the contempt power for two purposes: 1. A court can use the contempt power to protect the rights of a litigant in a legal dispute A reporter who refuses to reveal the name of a source critical to the defense of a person charged with larceny could endanger the person's right to a fair trial. The contempt power can be used to force the reporter to testify. Similarly, a broadcasting station that refuses to pay the plaintiff a judgment after losing a libel case endangers the right of the injured party to repair their reputation. Again, the contempt power can be used to force the broadcaster to pay the judgment 2. The contempt power can be used to vindicate the law, the authority of the court or the power of the judge A defendant who refuses to stop talking during a trial or an attorney who continually ignores judicial warnings against talking to reporters about the merits of the case can be punished with a contempt citation. So can a writer who carelessly and aggressively criticizes a court ruling a newspaper editorial. Judges who use the contempt power to protect the rights of litigants usually impose an INDETERMINATE (undetermined) sentence against the target of the contempt. That is, a judge can jail a reporter until they are willing to reveal the name of the critical source. Or the court can fine the broadcaster a specific amount each day until the civil judgment is paid. The punishment is used to coerce the target of the citation to take some action Judges who use the contempt power to vindicate the law, the authority of the court or the power of the judge will generally impose a DETERMINATE SENTENCE - that is, a specific fine ($25k) or jail sentence (30 days in jail). The sentence is strictly punishment; no coercion is implied Contempt and the Press The contempt power is broad and touches all manner of persons who run afoul of a judge. Journalists are among those at jeopardy. What kinds of situations are most likely to result in contempt problems for the press? 1. Failure to pay a judgment in a libel or IOP case. 2. Failure to obey a court order. The judge rules that no photos may be taken in the courtroom, or orders reporters not to publish stories about certain aspects of a case. If these orders are disobeyed, a contempt citation may result 3. Refusal of a journalist to disclose the identity of a source or to testify in court or before a grand jury. 4. Critical commentary about the court. Might be an editorial critical of the court or a cartoon mocking the judge. In rare instances, contempt citations have been issued to punish the press in such cases. The Supreme Court has said that, for criticism of a court to be punished, the criticism must pose a "clear and present danger to the administration of justice" 5. Tampering with a jury. A reporter tries to talk with jurors during a trial, asking questions about their views on the defendant's guilt or innocence. These situations are some of the more common ways members of the press might become involved in a contempt problem, this list is by no means exhaustive. Collateral Bar Rule When a journalist violates a court order, a contempt citation is probably forthcoming. But what if the court order appears to be illegal or unconstitutional on its face? Can a journalist still be held in contempt of court for violating such an order? The answer to that important question is maybe, there is no clear resolution of this matter at present. The legal concept involved is called the collateral bar rule, a rule that requires that all court orders, even those that appear to be unconstitutional and are later deemed unconstitutional by an appellate court, must still be obeyed until they are overturned! The collateral bar rule states a person who violates a court order cannot collaterally challenge the order's constitutionality as a defense to the contempt charge. Instead, that person must obey the order and hope to get it overturned on appeal. While this rule has RARELY been invoked against the press, a U.S. Court of Appeals ruling from 1972 stands as a stark reminder of its meaning. Reporters Adams and Dickinson of the Baton Rouge Morning Advocate and State Times (Louisiana) ignored what they believed was an unconstitutional court order forbidding them from publishing information about what took place in an open federal court hearing. The pair, who were each fined $300, appealed the order and the 5th Circuit in U.S. v. Dickinson ruled the trial judge's actions were clearly unconstitutional. At the same time, the court upheld the contempt citations, ruling a person may not, with impunity, violate a court order that later turns out to be invalid. While this rule, sometimes called the DICKINSON RULE, seems grossly unfair, there is a logic to it. The court system would cease to operate as it does if people had a choice of whether or not to obey a court order. Without the power to coerce behavior, judges would be unable to discharge their duties and responsibilities, and courts would become mere boards of arbitration that issue advisory opinions. The judge who wrote the opinion in the Dickinson case probably spoke for many jurists when he wrote, "Newsmen are citizens too. They too may sometimes have to wait" Only one important collateral bar case involving the press has occurred since this 1972 ruling. In this case a federal judge in RI found the Providence Journal and its editor, Hauser, in contempt of court for violating the judge's order forbidding the publication of any information that had been obtained by the government from an illegal FBI wiretap. But the 1st Circuit ruled the trial judge's order was transparently invalid and could not serve as a basis for a contempt citation. The appellate court added, however, in the future publishers and broadcasters should first try to get an appellate review before violating a court order. With the 5th Circuit and the 1st Circuit somewhat in disagreement about this matter, the Supreme Court agreed to hear an appeal. But after reading briefs and hearing arguments, the members of the Supreme Court dismissed the appeal because the special prosecutor who handled the appeal for the government had failed to obtain proper authorization from the Solicitor General of the U.S. to petition for a writ of certiorari. At the federal level the issue remains unresolved. But courts in WA and IL have flatly rejected the rationale of the Dickinson case, and courts in AZ, CA, MA, and AL have considered the matter but have issued ambiguous rulings. Summary The power of a judge to punish for contempt is a remnant of the power of English royalty. Today, courts have broad powers to punish people who offend the court, interfere with legal proceedings or disobey court orders. Contempt is used to protect both the rights of private persons who are litigating matters in the courts and to punish a wrong committed against the court itself. Some limits have been placed on the contempt power. Legislatures often restrict the kinds of sentences judges may impose for contempt or require a jury trial before a contempt conviction. The Supreme Court has ruled before criticism of a court may be punished by contempt, it must be shown the criticism created a clear and present danger of the likelihood of interference with administration of justice. In some jurisdictions appellate courts have ruled people must obey even unconstitutional contempt orders (Dickinson or collateral bar rule).

The Failure to Keep a Promise Many journalists are reluctant to reveal the names of their sources because they think it would be unethical, diminish their ability to use the source in the future. About 30 years ago, reporters discovered another reason to protect the identity of a source: they could be ... if they broke their promise of c...! Cohen v. Cowles Media, Inc. (1991) -Decision...? The ... ... doesn't prevent a l... against a journalist who breaches a promise of c... to a source when the source suffers d... h... from reliance on the breached promise! A Republican political operative, Cohen, was given a promise of a... by reporters from two Minn. papers in return for information Cohen would supply about a rival candidate for public office. The info Cohen gave turned out to be old and insignificant, and the editors decided the real story was not the info Cohen supplied but instead Cohen's own tactics in spreading dirt under the cloak of a... about a rival candidate. The two newspapers decided to reveal Cohen's name, a move that cost Cohen his job (fired) -Upholding Cohen's right to ... the papers for their breached c... promise under a legal theory called P... ..., majority held "the ... ... doesn't confer on the press a c... r... to disregard promises that would otherwise be enforced under s... l..." -G... a... laws do not offend the ... ... simply because their enforcement against the press has incidental effects on its ability go gather and report the news! Remember when gathering news as a journalist: Journalists cannot break g... ... and then try to claim a ... ... ex... from them! (Recall the Matthews case for child pornography) P... ... is an old legal rule that was promulgated to prevent injustice when someone fails to keep a ... they made, a ... that by itself doesn't add up to an enforceable contract, but a ... someone else has relied on! To prevail in an action for p... ... the plaintiff is usually required to show: 1. The defendant made a c... and d... ... to the plaintiff 2. The defendant intended to induce the plaintiff's r... on that ... 3. The plaintiff, in fact, reasonably r... on that ... to his/her d... or h... 4. The ... must be enforced by the court in the interests of the j... to the plaintiff Example: Imagine a journalist tries to convince a lab tech at a chemical company to reveal specific information that proves her employer is polluting a stream. She is reluctant, fears she will be fired if her cooperation with the reporter is discovered. But the reporter presses (2) her and clearly (1) promises that he will never, under any circumstance, reveal her name. The story is published (3). The employee is fired (3) after the reporter gives her name to a state legislative committee investigating the pollution. She then could bring an action for p... ... If you break a ... of c... to a source and the source is h... by that breach, then you cannot rely on the ... ... to protect you! Tips for reporters when confronted with a source who demands confidentiality 1. Assume the interview is ... the r... unless the subject seeks a... 2. Realize there is no o... to grant a... for information that has already been provided! 3. Before making any promise to a source, try to find something out about the information and w... it comes from 4. Talk with an ... or n... ... before making any promises to a source 5. Keep any promise made to a source s... and e... to fu..., and be certain both you and the source c... u... the conditions to which you have agreed 6. R... any promise you make to a source 7. Avoid adding material to a story that a source has al... a..., or try to avoid promising the source s... a...! Constitutional Protection of News Source Branzburg v. Hayes (1972) -Decision...? -Supreme Court ruled there was no p... under the ... ... for journalists to refuse to reveal the names of confidential sources or other information when called to t... before a ... j...! -This is the last word the Supreme Court has spoken on the subject! -Consolidated three similar cases to consider whether the ... ... p...d journalists not to testify before ... j... about confidential information! 1. Case involved Branzburg, a reporter from the Courier-Journal. Branzburg was called to testify about drug use in KY after he wrote two stories about drugs/drug dealers. 2. Pappas, a TV reporter for a Mass. station, called before a ... ... to relate what he had seen/heard at a Blank Panther headquarters. 3. NYT reporter Caldwell was subpoenaed to appear before a ... ... investigating the activities of Black Panthers in Oakland, CA. Caldwell, a Black man, gained the confidence of the leaders of the militant group and consistently wrote illuminating stories about the Panthers that demonstrated an astute awareness of their activities Know collectively as the Branzburg ruling! Supreme Court will fracture into three groups: 1. Four justices led by White (wrote court's opinion) ruled there was no ... ... p... for reporters called to testify before a ... ...! (Though the court was sensitive to ... ... considerations, the case did not present any such considerations - no prior restraint, limitations on what might be published, no order to publish what it didn't want to, no penalty for certain content, etc.) "The use of c... s... is not forbidden/restricted. The sole issue is the obligation of reporters to respond to ... ... subpoenas as o... c...; C... generally are not c... immune from ... ... subpoenas; and neither the ... ... nor other constitutional provisions protect the a... c... from the disclosing to a ... ... info that he has received in confidence." [Reporters are no better than a... c...!] 2. Four dissenters: -Justice O. Douglas takes the view the ... ... provides press with an a.../unq... p...! In any circumstance, under any condition, reporter should be able to shield the identity of a confidential source -Justices Stewart, Brennan, and Marshall were unwilling to go as far as Douglas - proposed reporters should be able to protect the identity of confidential sources unless the government can show the following: 1. There is p... c... to believe the reporter has information that is c... r... to a specific violation of the law 2. The information sought cannot be obtained by a... m... less destructive of ... ... rights 3. The state has a c... and ov... in... in the information When the government cannot fulfill all three requirements, Stewart wrote for dissenters, journalists should not be forced to testify 3. Justice Powell provided the fifth vote for the court to reject the notion of a c... p... for reporters! -Though Powell voted with those who could find n... p... in the ... ..., his concurring opinion seemed to support the opposite proposition. "The Court doesn't hold that newsmen, subpoenaed to testify before a ... ..., are without constitutional rights with respect to gathering of news or safeguarding their sources." 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 were legitimate 1A interests require protection." Saxbe v. Washington Post (1974) - Powell emphasized the Supreme Court's ruling in Branzburg is an extremely ... ruling and reporters were not without ... ... rights to protect the identity of their sources! Example: United States v. Sterling (4th Circuit, 2013) "The Branzburg court declined to treat reporters differently from a... o... c... who are compelled to g... e... of criminal activity" -Sterling was a criminal espionage case involving federal government's subpoenaing of NYT reporter Risen. The government wanted him to testify in the prosecution of former CIA agent Sterling, who allegedly leaked classified information to Risen -4th Circuit denied Risen a q... ... ... ...'s p... that would have shielded him from being compelled to testify in the case -In addition to rejecting a ... ... ...'s p... not to testify, the 4th Circuit also refused to create/recognize a federal ...-law ...'s p... protecting confidential sources -U.S. Supreme Court chose not to hear Risen's appeal, passing prime opportunity to revisit Branzburg At the same time, most other federal courts have limited the Branzburg ruling to apply only to ... ... settings, and they have created either under ... ... or ...-law principles, q... (l...) p... for journalists not to testify in other, non-... ... settings

The Failure to Keep a Promise Many journalists are reluctant to reveal the names of their sources because they think it would be unethical or would diminish their ability to use the source at some point in the future. About 30 years ago, reporters discovered another reason to protect the identity of a source: They could be sued if they broke their promise of confidentiality! 1991, five-justice majority of Supreme Court held in COHEN V. COWLES MEDIA, INC. the 1A doesn't 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. A Republican political operative named Dan 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 info Cohen gave turned out to be old and insignificant, and the newspapers' editors decided the real story was not the info Cohen supplied but instead Cohen's own tactics in spreading dirt under the cloak of anonymity about a rival candidate. The two newspapers decided to reveal Cohen's name, a move that cost Cohen his job when his employer read his name and then fired him. Upholding Cohen's right to sue the papers for their breached confidentiality promise under a legal theory called promissory estoppel, majority held "the 1A doesn't confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law" The majority found the case was controlled by a well-established line of decisions holding that generally applicable laws don't offend the 1A simply because their enforcement against the press has incidental effects on its ability to gather and report the news." This language is important for journalists to remember when gathering news: They cannot break general laws and then try to claim a 1A exemption from them. Same maxim from the Lawrence Matthews case involving child pornography. Promissory estoppel is an old legal rule that was promulgated (made widely known) to prevent injustice when someone fails to keep a promise they made, a promise that by itself doesn't add up to an enforceable contract, but a promise someone else has relied on. To prevail in an action for promissory estoppel the plaintiff is usually required to show: 1. The defendant made a clear and definite promise to the plaintiff; 2. The defendant intended to induce the plaintiff's reliance on that promise; 3. The plaintiff, in fact, reasonably relied on that promise to his or her detriment or harm; and 4. The promise must be enforced by the court in the interests of the justice to the plaintiff. Imagine a journalist tries to convince a lab technician at a chemical company to reveal specific information that proves her employer is polluting a nearby stream. She is reluctant; she fears she will be fired if her cooperation with the reporter is discovered. But the reporter presses her and clearly promises that he will never, under any circumstance, reveal hear name if she gives him the info. The story is published. The employee is subsequently fired after the reporter gives her name to a state legislative committee investigating the pollution. She then could bring an action for promissory estoppel. The bottom line is if you break a promise of confidentiality to a source and the source is harmed by that breach, then you cannot rely on the 1A to protect you! Box: Tips for reporters when confronted with a source who demands confidentiality 1. Assume the interview is on the record unless the subject seeks anonymity 2. Realize there is no obligation to grant anonymity for information that has already been provided 3. Before making any promise to a source, try to find something out about the information and where it comes from 4. Talk with an editor or news director before making any promises to a source 5. Keep any promise made to a source simple and easy to fulfill, and be certain both you and the source completely understand the conditions to which you have agreed 6. Record any promise you make to a source 7. Avoid adding material to a story that a source has already approved, or try to avoid promising the source that he or she has story approval Constitutional Protection of News Sources 1972, Supreme Court of the U.S. ruled in a 5-4 decision, there was no privilege under the 1A for journalists to refuse to reveal the names of confidential sources or other information when called to testify before a grand jury! This ruling five decades ago (BRANZBURG V. HAYES) is the last word the nation's high court has spoken on the subject. 2013, 4th Circuit observed in United States v. Sterling "the Branzburg Court declined to treat reporters differently from all other citizens who are compelled to give evidence of criminal activity." Sterling was a criminal espionage case involving the federal government's subpoenaing of NYT 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 qualified 1A reporter's privilege that would have shielded him from being compelled to testify in the case against Sterling. In addition rejecting the existence of a 1A 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. 2014, 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 other federal courts have limited the Branzburg ruling to apply only to grand jury settings, and they have created, either under 1A or common-law principles, qualified (limited) protection for journalists not to testify in other, non-grand-jury settings. How did it get to this point, starting with the Branzburg case and ruling? The Supreme Court consolidated three similar cases in Branzburg to consider whether the 1A privileged journalists not to testify before grand juries about confidential information. One case involved Paul Branzburg, a reporter from the Louisville Courier-Journal. Branzburg was called to testify in 1971 about drug use in KY after he wrote two stories about drugs and drug dealers in the area. In the second case, Paul Pappas, a TV reporter for a MA TV station, was called before a grand jury to relate what he had seen and heard when he spent three hours at a Blank Panther headquarters in July 1970. NYT reporter Earl Caldwell was subpoenaed to appear before a grand jury investigating the activities of Black Panthers in Oakland, CA. 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 there was no 1A privilege for reporters called to testify before a grand jury. White said though the court was sensitive to 1A considerations, the case didn't 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 info 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 1A nor other constitutional provisions protect the average citizen from the disclosing to a grand jury info that he has received in confidence." 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 the 1A 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 reporters should be protected by a privilege that is qualified, not absolute. These three dissenters argued the reporter should be able to protect the identity of the confidential sources unless the government can show the following: 1. There is probable cause to believe the reporter has information that is clearly relevant to a specific violation of the law 2. The information sought cannot be obtained by alternative means less destructive of 1A rights 3. 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 journalists 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 1A, his brief concurring opinion seemed to support the opposite proposition. "The Court doesn't hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to gathering of news or in safeguarding their courses." 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 were legitimate 1A interests require protection." Two years later, in footnote of another case, Saxbe v. Washington Post, Powell emphasized the high court's ruling in the Branzburg case extremely narrow one and reporters were not without 1A rights to protect the identity of their sources.

Intrusion: The Use of Hidden Recording Devices The ... of video and audio recording equipment has made it possible for anyone including reporters to secretly record conversations, confrontations, meetings, other happenings. Can such recording constitute an intrusion? It is not an easy question to answer d...! U.S. Court of Appeals in California ruled secret recording could constitute an il... ... Dietemann v. Time, Inc. (1971) Two Life reporters agreed to cooperate with Los Angeles police who sought to arrest a man practicing medicine without a license. Posing as a man and wife, pair went to home of doctor where he conducted practice. While Dietemann examined the woman, the man secretly photographed the procedure. At the same time the conversation was recorded secretly -Police arrested Dietemann weeks later, following his apprehension the magazine published a story with a transcript of the recorded conversation and some photos taken in his home -Appellate court sustained his suit for intrusion, ruling a homeowner should not be required to take the risk that is what heard or seen in their home will be transmitted by photography or recording to the public at large -Have all other courts followed this precedent? Though none of the subsequent cases involved recording/photography in a ... ...! Cases that did not apply Dietemann as precedent -Police officers acting as undercover agents, investigating massage parlors in Chicago. Owner of one parlor where police had arrests believed he was being harassed by officers and invited a TV news camera crew to come and secretly film the encounter with an undercover agent and model at parlor -Arrested model for solicitation. Three other agents came in room at same time TV crew burst through door, filming as they left the building. Officers sued for intrusion, using Dietemann as precedent. Illinois appellate court ruled in favor of ..., ... the facts from the two cases: a. Plaintiffs were ... o... acting in line of duty when filming took place b. Film crew not in a ... ... but a ... ... c. Crew on hand at ... of the operator of the parlor No right of privacy against intrusion said to exist with reference to gathering and dissemination of news concerning discharge of p... d...! -Kentucky circuit court Young woman secretly recorded conversation with attorney in attorney's office. Newspaper published transcript. ... the case from Dietemann - the woman was in his office at his ... (an ... of the court, discussing a ... court with a potential client) -U.S. District Court in IL ABC News secretly recorded and photographed eye examinations at ophthalmology clinic. Owners of clinic sued Did not violate the doctor-patient agreement because that privilege belongs to the ... [Example: If doctor had filmed without permission of patient, would be violation of privilege] [But when patients authorized the recording] ... from Dietemann - a public place of business NOT private home; also eye clinic actively solicited to the public to visit the facility whereas Dietemann did no advertising Ag-Gag Laws (U... intrusion into ... facilities) Many ... rights activists and investigative news organizations concerned about deplorable conditions and alleged abuse of ... at factory ... and ... -Activists sometimes try to go ... to tape such conditions. Starting in 2012, numerous states began adopting ... statutes known as 'ag-gag' laws that made such ... images more difficult to take -Utah (without consent of operation's owner, knowingly or intentionally records an image or sound from operation by leaving recording device on operation or obtain access to operation under false pretenses) -By 2017, at least 8 states had adopted some variation of an ag-gag statute Many of these laws have been ... in the courts -Idaho: Federal district court - unconstitutional for violating ... ... freedom of ...- Statute criminalized ... investigations of production facilities in part prohibiting from obtaining employment by misrepresentation with intent to cause economic and other such injury; and by prohibiting audio or video recordings of conduct of facility's operations Judge found c...-... regulation and subject to ... ... 9th District - affirm in part, reverse in part, vacate in part injunction against statute's enforcement The portion of the statute that criminalized making of misrepresentations to enter a facility or making of recordings did not survive ... ... BUT portion that criminalized obtaining records and obtaining employment via misrepresentation with intent to cause economic or other injury did survive ... ... -Utah: Federal district court, unconstitutional Though these two cases are first to overturn such bans on filming at ..., the future of ag-gag laws is yet to be determined Intrusion by Drones Rapid proliferation of unmanned aircraft systems (drones) armed with video recorders creates potential for a large number of civil lawsuits for intrusion into seclusion Consider this example: Imagine intentionally flying an image-recording drone 100 feet above the ground over your neighbor's fenced-in and secluded backyard pool while neighbor sunbathes nude. Many would consider such an aerial intrusion into a private location ... ... to a reasonable person -California amended its ...-... ... to cover invasions 'into the ... above the land of another person without their permission' 2016, more than 25 states adopted some form of legislation to address use of drones, on top of regulation and requirements for drone registration by the ... ... ... -Some of these laws affect ... by creating legal remedies/causes of action for individuals who are s... or who have their pictures taken by drones without their consent while situated on own private property Consider the pool scenario again but imagine a drone flown by a ... who only ... flies over the bather while on the way to capture images of a house fire. Drone ... captures f... images of the bather but only does so in process of reaching the fire - a ... event! Doubtful this image would be considered ... ... under intrusion because both f... and not done for v... or d... purpose. But there could be ... under certain ... drone ...! -North Carolina's ... prohibits use of drones to photograph individual without consent, for purpose of publishing/disseminating the photo. BUT lawmakers carved ... from ... for '..., ... events, or events/places which g... ... is invited' -Florida - offers no such ... ... (civil remedy) -Texas - no such ... ... (criminal misdemeanor) The problem with the growing number of state ... targeting drone use is they create an u... ... of laws a journalist must navigate through to avoid ... and ... l... -The tort of intrusion should provide a sufficient remedy already -In addition to state laws, the ... ... ... has regulations regarding drones (sweeping news regulations on drone registration and use covering spectrum of commercial uses for drones weighing less than 55 pounds, 2016). Also has its Advisory Rulemaking Committee (report and recommendations on remote UAS identification and tracking)

The Use of Hidden Recording Devices The miniaturization of video and audio equipment has made it possible for anyone including reporters to secretly record conversations, confrontations, meetings, and other happenings. Can such recording constitute an intrusion, IOP? Not easy to answer the question definitively! 1971, US Court of Appeals in Ca., ruled such secret recording could constitute an illegal intrusion. Two reporters of Life agreed to cooperate with LA police who sought to arrest a man who was practicing medicine without a license. Posing as a man and wife, pair went to home of doctor where he conducted his practice. While Dietemann examined the woman, man secretly photographed the procedure. At same time the conversation was secretly recorded. Police arrested D weeks later, and following his apprehension the magazine published a story with a transcript of the recorded conversation and some of the photos taken in his home. The appellate court sustained his suit for intrusion, ruling a homeowner shouldn't be required to take the risk that what is heard or seen in their home will be transmitted by photography or recording to the public at large. Other courts haven't followed this precedent, though none of the subsequent cases involved recording or photography in a private home. 1975, Cassidy and other Chicago police officers were acting as undercover agents, investigating massage parlors in city. The owner of one massage parlor where police had made arrests believed he was being harassed by the officers and invited a TV news camera crew to come in and secretly film an encounter between an undercover agent and a model at the parlor. Camera set up behind two-way mirror and filming when officer Cassidy came in, paid $30 for deluxe lingerie modeling and arrested the girl for solicitation. Three other agents came into room at same time TV news crew burst through another door, filming as they left the building. The officers sued the station for intrusion, using Dietemann (Dietemann v. Time, Inc.) case as precedent. But an IL appellate court ruled in favor of journalists, distinguishing Dietemann case in some important ways. First: Cassidy and other plaintiffs were PUBLIC OFFICERS acting in line of duty when filming took place. Second: film crew NOT IN PRIVATE HOME but a public business. And third, crew was on hand at the INVITATION of the operator of the premises. No right of privacy against intrusion can be said to exist with reference to gathering and dissemination of news concerning discharge of public duties. A KY circuit court ruled it wasn't an intrusion when a young woman, at instigation of a newspaper, secretly recorded a conversation she had with an attorney in the attorney's office. After the newspaper published a transcript of the conversation, during which attorney McCall proposed an unethical fee arrangement with the woman, the lawyer sued for intrusion. Again, court distinguished Dietemann, noting the woman was in his office AT HIS INVITATION. "A lawyer, an officer of the court, discussing a public court with a potential client, is not seclusion within meaning of the law" KY appellate court upheld the ruling. US District Court in IL in 1994 rejected intrusion claim against ABC News after it secretly photographed and recorded eye examinations at an ophthalmology clinic. The owners of the clinic sued. The court ruled plaintiffs had alleged no damage from the recording other than it was broadcast. The court also rejected the claim the recording violated the doctor-patient privilege. That privilege belongs to the patient not the doctor. If the doctor had filmed the examination, it would be a violation of this privilege and likely an intrusion. But when patients authorized the recording (working for the network), no legal wrong occurred. 5th Circuit Court upheld this ruling in early 1995. Specifically rejected the plaintiff's arguments that the Dietemann ruling should control in this situation. The court said Dietemann was operating out of his home, not a public place of business. And Dietemann did no advertising whereas the eye clinic actively solicited the public to visit the facility. Cases like those cited have chipped away at the substance of the Dietemann ruling. Box: undercover intrusions into animal facilities - The rise of 'Ag-Gag' laws and the 'Farmarazzi' Many animal rights activists as well as investigative news organizations are concerned about the deplorable conditions and alleged abuse of animals at factory farms and slaughterhouses. Activists and reporters sometimes try to go undercover to videotape such conditions. Starting in 2012, numerous states began adopting criminal statutes known as 'ag-gag' laws that make such undercover images much more difficult to take. Utah's law provides a person is guilty of agricultural operation interference if the person without consent of the operation's owner, either knowingly or intentionally records an image or sound from agricultural operation by leaving a recording device on the operation or obtains access to an operation under false pretenses. By 2017, at least 8 states had adopted some variation of an ag-gag statute. Many of these laws have been challenged in the courts. In 08/2015, federal district court declared ID's ag-gag law unconstitutional for violating 1A freedom of speech in Animal Legal Defense Fund v. Otter. Statute was designed to criminalize undercover investigations of agricultural production facilities by in part prohibiting a person from obtaining employment at such facilities by 'misrepresentation with the intent to cause economic or other injury' and by prohibiting 'audio or video recordings of the conduct of an agricultural production facility's operation.' Judge found the law was a content-based restriction on speech subject to rigorous standard of strict scrutiny judicial review. 2018, 9th District issued opinion affirming in part, reversing in part and vacating in part the injunction against the statute's enforcement. 9th Circuit affirmed (declared) the portions of summary judgment that struck down statutory provisions that criminalized the making of misrepresentations to enter an agricultural production facility and barred the making of audio and video recordings in such a facility (THIS PORTION DOESN'T SURVIVE STRICT SCRUTINY). HOWEVER, the court reversed the portion of the SJ that struck down the statutory provision criminalizing obtaining records of an agricultural production facility by misrepresentation and obtaining employment at such a facility by misrepresentation with intent to cause economic or other injury (THIS PORTION IS UPHELD). 2017, Animal Legal Defense Fund v. Herbert, US District Judge ruled Utah's ban was also unconstitutional. Judge ruled the state failed to show the ban was intended to ensure the safety of animals and farm workers from disease or injury. Judge noted while the state had an interest in addressing 'perceived threats to the state agricultural industry suppressing broad swaths of protected speech' wasn't proper way to achieve goals. Although these two cases are first to overturn bans on filming at farms, the future of ag-gag laws is yet to be determined. 2020, US District Court for District of Kansas struck down nearly all of Kansas's 'Ag-Gag' law for violating the 1A. The court's decision left intact only portions of the law criminalizing causing physical damage to animals and facilities, and civil remedy for violations, finding plaintiffs in the case lacked standing to challenge those provisions. Intrusion by Drones The rapid proliferation of unmanned aircraft systems (UAS), or drones, armed with video recorders creates the potential for a large number of civil lawsuits for intrusion into seclusion. Imagine intentionally flying an image-recording drone about 100 feet above the ground over your neighbor's fenced-in and otherwise secluded backyard swimming pool while neighbor sunbathes nude. Many would consider such an aerial intrusion into a private location highly offensive to a reasonable person. California amended its anti-paparazzi statute in 2015 to cover invasions 'into the airspace about the land of another person without their permission' By 2016, more than half of states adopted some form of legislation to address the use of drones, coming on top of Federal Aviation Administration (FAA) regulation and requirements for drone registration. Some state laws prohibit the use of drones to hunt animals or to capture images of critical infrastructure buildings and structures, but others affect the use of drones by journalists to gather newsworthy images and seriously raise 1A concerns. These laws affect drone journalists by creating legal remedies (civil causes of actions) for individuals who are surveilled or who have their pictures taken by drones without their consent while situated on their own private property. Consider the pool scenario but with the drone flown by a journalist who only briefly flies over the sunbather while on way to capture the images of a roaring house fire two blocks down. The drone incidentally captures fleeting images of the sunbather but only does so in the process of reaching the fire - a newsworthy event. It is doubtful the image capture of the sunbather would be considered 'highly offensive' under intrusion cause of action because it was both fleeting and not done for a voyeuristic or deviant purpose. But might there be liability under a state drone statute? North Carolina's drone statute prohibits the use of drones to 'photograph an individual, without their consent, for the purpose of publishing or otherwise publicly disseminating the photo' But lawmakers wisely carved out an exemption from liability under this statute for 'newsgathering, newsworthy events, or events or places to which the general public is invited' Florida on the other hand lacks such a newsworthiness exemption from its drone law. Provides a person (including journalist) may not use a drone equipped with an imaging device to record an image of a privately owned property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such a person's reasonable expectation of privacy without their written consent. Florida creates a private civil remedy for individuals who are victims of such conduct. Texas goes even further with its drone statutes, making it a criminal misdemeanor to use a drone to capture an image of an individual or privately owned real property in this state with intent to conduct surveillance on the individual or property captured in the image. As with Florida, Texas has no exemption for journalists who gather images of individuals involved in newsworthy activities on their own property. Ultimately the problem with the growing number of state statutes targeting drone use is they create an UNEVEN PATCHWORK of laws a journalist must navigate to avoid criminal and civil liability. The tort of intrusion should provide a sufficient remedy already - by itself and without need for additional state laws - for any individual whose privacy is truly invaded in a highly offensive manner by either a drone hobbyist or journalist. In addition to state laws, the FAA has regulations regarding drones too. In 2016, FAA issued sweeping new regulations (Part 107) regarding drone registration and use that cover a broad spectrum of commercial uses for drones weighing less than 55 pounds. Additionally, FAA's Advisory Rulemaking Committee submitted a report and recommendations on remote UAS identification and tracking. A bevy of media companies filed a dissent from the committee's recommendation, noting the discussion at the meetings on the important 1A considerations have been extremely limited and the Recommendations and Final Report contain insufficient consideration of the constitutional guarantees of the journalists to gather and the public to receive news and information in the public interest.

Common Charges 1. ...-Based Offenses: ... is one of the most common charges journalists face when ... while covering protests. Journalists should be cognizant of ... they are at all times and try to avoid ... on ... p...! 2. ...-Based Offenses: Journalists are also frequently arrested, along with protestors, for ... c..., o..., and ... to d... Other possible charges include failing to ... an ...'s ..., ... the p..., and ... a... These charges involve a degree of ... from the a... ..., which can make it difficult to know what ... is c...! To help avoid arrest, journalists should prominently display their ... ... and follow ... ... to the extent possible 3. ... Violations: Though an increasing number of courts have recognized a right to ... police officers performing their ... in ..., it is still illegal in most states to s... ... a ... c... without the c... of at least ... p..., or in some states, ... p...! Whether a c... is ... is a f....-... analysis that typically considers whether the person ... has a ... ... of ... ... laws vary considerably across the country! Press Rights at Protests 1. Do I have a ... ... right to cover a protest? ..., with .... Freedom of the press protects the right to c... and d... news, but the right is not .... Members of the media are subject to the same ... laws as ... ... and do not have a ... right of ... to ... of information. However, police may not arrest a reporter or deny access simply to retaliate for ... ... c... or to prevent reporting on a p... ... 2. Do I have a ... ... right to ... the police? Most courts recognize a ... ... right to ... the ... activities of law enforcement, but the issue is not settled in ... j... In addition, it is ... in most states to ... record a ... conversation without the c... of at least ... p..., or in some states, ... p... Journalists should familiarize themselves with the applicable ... law. To reduce legal risks, journalists should clearly ... themselves as ... of the ..., ... from ... d..., and remain o... and t... about recording. 3. Can police ... and ... m... and my e...? Police can b... d... you if they have r... ... to believe you are engaged in ... a..., and they can "f..." or ... you ... if they have an o..., r... b... you are a... and d... If police have ... ... to believe you are c... a ..., they can ... you. Though a search of someone's property generally requires a ... issued by a ..., during an ..., police can ... and ... personal property on your ... and in your im... v... Although police cannot search the contents of a ... without a ..., they can still ... it during an ..., ... it for ... ... and ... it while a ... is pending. Other r... ..., such as c..., may have similar protections, depending on the jurisdiction! Under the ... ... ..., the government cannot ... or ... w... ... or d... ... if the journalist intends to ... the materials to the ... and is not engaged in any c... ... to which the materials r.... Journalists should clearly ... themselves as ... of the ... to put police on n... that this law applies to them. To mitigate the possible the harm of a ... or ..., journalists can use l... s... ..., minimize the amount of ... kept on d..., and demand a court order for p... r... Journalists can also avoid c... to searches, while remaining r.... 4. Can I r... p... o... based on my rights? P..., but it is not .... Depending on the c... and a... s... l..., doing so could put you at risk of ... for various c... such as ... to o..., ... to d..., o... of ..., and d... ... Journalists should c... with requests from law enforcement but can c... d... their r... if they feel a request violates those r... Journalists should remain r... when interacting with police and avoid acting in a manner that incites v..., creates d..., or in... with law enforcement. 5. What steps can I take to avoid arrest? -> ... yourself as a ... of the ... -> Be ... of what is happening ... you during the event you are covering -> Avoid ... the l...

Common Charges 1. Location-Based Offenses: Trespassing is one of the most common charges journalists face when arrested while covering protests. Journalists should be cognizant (aware) of where they are at all times and try to avoid trespassing on private property! 2. Conduct-Based Offenses: Journalists are also frequently arrested, along with protestors, for disorderly conduct, obstruction, and failure to disperse. Other possible charges include failing to obey an officer's orders, disturbing the peace, and resisting arrest. These charges involve a degree of subjectivity from the arresting officer, which can make it difficult to know what conduct is criminal. To help avoid arrest, journalists should prominently display their press credentials and follow police orders to the extent possible. 3. Wiretapping Violations: Although an increasing number of courts have recognized a right to record police officers performing their duties in public, it is still illegal in most states to surreptitiously (secretly) record a private conversation without the consent of at least one party, or, in some states, all parties. Whether a conversation is private is a fact-specific analysis that typically considers whether the person recorded had a reasonable expectation of privacy. Wiretapping laws vary considerably across the country! Press Rights at Protests 1. Do I have a First Amendment right to cover a protest? Yes, with limitations. Freedom of the press protects the right to collect and disseminate news, but the right is not absolute. Members of the media are subject to the same general laws as other citizens and do not have a special right of access to sources of information. However, police may not arrest a reporter or deny access simply to retaliate for negative news coverage or to prevent reporting on a public demonstration. 2. Do I have a First Amendment right to record the police? Most courts recognize a 1A right to record the public activities of law enforcement, but the issue is not settled in all jurisdictions. In addition, it is illegal in most states to surreptitiously (secretly) record a private conversation without the consent of at least one party, or in some states, all parties. Journalists should familiarize themselves with the applicable wiretapping law. Reporter's Recording Guide has info on each state's law. To reduce legal risks, journalists should clearly identify themselves as members of the press, record from safe distances, and remain open and transparent about recording. 3. Can police search and seize me and my equipment? Police can briefly detain you if they have reasonable suspicion to believe you are engaged in criminal activity, and they can "frisk" or pat you down if they have an objective, reasonable belief you are armed and dangerous. If police have probable cause to believe you are committing a crime, they can arrest you. Though a search of someone's property generally requires a warrant issued by a court, during an arrest, police can search and seize personal property on your person and in your immediate vicinity. Although police cannot search the contents of a cellphone without a warrant, they can still seize it during an arrest, examine it for physical threats and secure it while a warrant is pending. Other recording devices, such as cameras, may have similar protections, depending on the jurisdiction! Under the Privacy Protection Act, the government cannot search or seize work product or documentary materials if the journalist intends to disseminate the materials to the public and is not engaged in any criminal activity to which the materials relate. Journalists should clearly identify themselves as members of the media to put police on notice that this law applies to them. To mitigate (reduce) the possible the harm of a search or seizure, journalists can use live streaming platforms, minimize the amount of data kept on devices, and demand a court order for password requests. Journalists can also avoid consenting to searches, while remaining respect. 4. Can I resist police orders based on my rights? Possibly, but it is not recommended. Depending on the context and applicable state laws, doing so could put you at risk of arrest for various crimes such as failure to obey, failure to disperse, obstruction of justice, and disorderly conduct. Journalists should comply with requests from law enforcement but can calmly discuss their rights if they feel a request violates those rights. Journalists should remain respectful when interacting with police and avoid acting in a manner that incites violence, creates danger, or interferes with law enforcement. 5. What steps can I take to avoid arrest? -> Identify yourself as a member of the press -> Be aware of what is happening around you during the event you are covering -> Avoid breaking the law

2. Criminal Cases Courts have granted the ... ... p... to reporters quite freely in civil actions, in part at least, because there is no c... c... r... involved! But in a criminal case the p... for the reporter must be balanced with the ... A... right of the d... to c... t... on his/her b...! -Consequently, it is somewhat less likely a court will permit a reporter to refuse to answer questions about the identity of a confidential source or other confidential information! Courts most often apply slight variations of the S... t... from the B... case to determine whether the journalist will be compelled to testify! Example: -In U.S. v. Burke, the defendant was indicted (formally accused) 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. The defendant asked the court to subpoena the unpublished notes and drafts of Sports Illustrated reporter Looney, who had interviewed the witness. The U.S. Court of Appeals for the 2nd Circuit quashed the subpoena, noting a court may order reporters to reveal confidential sources only when the information is (1) highly m... and r..., (2) n... or c... to the d... and (3) un... from o... s... -WA Supreme Court ruled that a reporter didn't have to reveal the names of several confidential sources he had used to prepare an article about alleged cult activities at an 80-acre farm near rural Snohomish. The owner of the farm, Rinaldo, had been convicted of statutory rape, assault, coercion and intimidating a witness. A year after his conviction, several persons who had testified on Rinaldo's behalf at his trial stepped forward and admitted they had committed perjury. It was during his second trial for tampering with witnesses and other offenses that Rinaldo tried to force reporter Larson to reveal the names of persons who gave the reporter information for six articles that had brought the activities at the farm to the attention of local authorities. Justice, speaking for the court, ruled Rinaldo would have to show the information was n... or c... to the d... and he had made a reasonable effort to get the material by o... m... He couldn't make such a showing, so the subpoena was quashed -VA judge ruled in favor of a TV station in Roanoke in a battle involving a story about a former sheriff's deputy accused of sexual assault. The accuser said the former sheriff's deputy, Townley, sexually assaulted her in the backseat of a car. T was arrested and charged with SA shortly afterward. One month later, WDBJ-TV ran a story about the incident and arrest, relying on an interview with the accuser. The accuser asked WDBJ-TV not to reveal her identity, so the story referred to her by pseudonym. After the story aired, T tried to force WDBJ to turn over unaired material it had gathered in its reporting and interview with accuser. WDBJ objected and challenged the subpoena. "At the heart of this issue," VA judge, "is the journalistic privilege to maintain confidentiality, a privilege arising under the ... ..., challenged by the Defendant's ... and ... Amendment rights to d... p... and r... to f... t..." -The VA Supreme Court recognized a q... ... ...-based p... in that state, setting up a balancing test to determine when the ... ...-based privilege yields to a defendant's r... to f... t... -The p... can be overcome only when the confidential information in question is e... to the d...'s c... and the defendant can't obtain the information by o... m... -T subpoenaed the unaired material from WDBJ on the grounds there might have been inconsistencies between statements the accuser made to the police and statements she made to WDBJ. But the judge ruled that T had no basis to support his accusation that WDBJ possessed info m... to his d...! 3. Grand Jury Proceedings Though the q... p... for reporters to refuse to reveal the identities of confidential sources in civil and criminal actions has been recognized by most lower federal courts and state supreme courts, THESE SAME COURTS have routinely r... to e... the ... ... privilege to grand jury proceedings! This refusal is true even though the grand jury's to f... d... isn't c... g..., as is the criminal defendant's right to compel a witness to testify -The obvious explanation for this reluctance on the part of judges is the single U.S. Supreme Court precedent focused on grand jury testimony and in Branzburg v. Hayes ruled n... p... e...! Example: -5th Circuit rejected an appeal from freelance writer Leggett who refused to turn over research materials to a federal grand jury in Houston. Leggett was trying to write a book about a 1997 murder that was being investigated by the DOJ. TX at that time had no ... law to protect reporters. The appellate court rejected her effort to invoke the c... p... The court said while the p... under the ... ... may protect a journalist's confidential sources in civil cases, its applicability is diminished in criminal cases and it reaches its lowest point in grand jury proceedings. "The public's interest in law enforcement proceedings always outweighs the media interests," the court ruled What happens when the individual requesting the information is a s... p... instead of a grand jury? -1st Circuit addressed this in 2004 when it handed down its decision in In re Special Proceedings. The appellate court held "Branzburg g... in this case even though we are dealing with a s... p... than a grand jury. The considerations bearing on p... are the same in both cases." -The court refused to extend a ...'s ... when confidential information is requested by a s... p... -FBI investigation called "Operation Plunder Dome" on government corruption in Providence, RI. The investigation sent several city officials, including former Mayor Cianci, to prison. The ... ... dispute involved efforts to obtain the name of a source that leaked to Taricani, a veteran TV reporter covering "OPD" a copy of a secret surveillance videotape of an FBI informant handing an envelope that allegedly contained a bribe to a city official named Corrente. Corrente was later convicted of bribery. T's station, WJAR-TV, aired a portion of the secret tape, and a federal judge appointed a s... p... to determine who leaked it to T. -When T refused to give up his confidential source, he was hit by the judge with civil contempt and a $1,000-a-day fine. In holding the opinion in Branzburg, which rejected a testimonial p... in g... j.. p..., also controlled cases involving s... p..., the 1st Circuit affirmed the district court judge's civil contempt finding against T. "There is no doubt the request of T was for information highly relevant to a good faith criminal investigation and reasonable efforts were made to obtain the information elsewhere." -Importantly, the appellate court cited somewhat favorably opinion in the McKevitt case that was skeptical of the Branzburg opinion offering any protection to journalists beyond what ordinary r... and r... requirements would demand. -With the appellate court decision against T, the district court began assessing the $1,000-a-day fine against the reporter in 08/2004. By early 11/2004, T still had not revealed his source and in the process racked up and paid fines of about $85k. Recognizing the civil fine was not forcing T to give up his confidential source, U.S. District Judge Torres then ordered T tried for criminal contempt unless the reporter gave up his source. In taking this step, the judge suspended the $1,000 fine because the case was now about c... contempt, not a c... penalty. Judge Torres found T guilty of criminal contempt. -In 12/2004 shortly before T was to be sentenced for his criminal contempt conviction, an attorney came forward and admitted that he was T's source He represented one of the city officials convicted in the scandal T was investigating. The admission did not negate the criminal contempt conviction of journalist T -T was sentenced to six months of home confinement. Judge Torres chose home confinement than prison because of health concerns about T -The case of T represents a low mark in recent years in terms of the legal protection that journalists have - or don't have - in protecting their sources. Nonconfidential Information and Waiver of the Privilege While U.S. courts have been w... to permit journalists to protect CONFIDENTIAL sources and information, most have been far more r... to protect reporters when nonconfidential information is at issue! And most subpoenas today to journalists are to gain access to nonconfidential information Example: Typical is the ruling by the 5th Circuit that said reporters ... enjoy p..., q... or otherwise, not to disclose nonconfidential information in a c... c... Seems in line with previous court rulings: A U.S. District Court ruled in 1990 a journalist who witnessed a beating of a criminal suspect by police had to testify on behalf of the injured party. "This court knows of no authority to support p... o... are privileged simply because the eyewitness is a journalist," judge ruled Photographers have been forced to surrender photos they have taken of building fires, industrial accidents, fatal auto accidents or even of an individual who has filed a personal injury lawsuit against an insurance company. The press has generally been u... to c... judges that it has an important interest at stake when it refuses to cooperate with those who seek nonconfidential information Example: 9th Circuit denied ... ... protection of Wolf, who videotaped a protest demonstration and refused to turn over the tape to government authorities. The appellate court wrote "the taped activities occurred entirely in ... and didn't occur in response to Wolf's p..., whether by questions or recording. He simply videotaped what people did in a p... p... Wolf does not claim that he filmed anything confidential nor that he promised anyone a... or c... Therefore, this case doesn't raise the usual concerns in cases involving journalists." Even when federal courts have recognized a q... p... to protect nonconfidential information, the scope of the p... has been very l...! Example: 2nd Circuit (NY, CT, VT) in 1998 recognized a q... p... for nonconfidential press information but noted where nonconfidential information is at stake, the showing needed to overcome the journalists' privilege is l... d... than for material acquired in confidence Courts have shown r... to protect reporters' nonconfidential information under s... s... laws too! Example: Seattle PD subpoenaed five news organizations, requesting each outlet turn over photos and videos - including unaired material - captured during their coverage of a protest that turned violent. The PD wanted images from a 90-minute period of the protest to help their efforts identifying multiple people who allegedly stole firearms from police vehicles and one who allegedly set fires in the area -A Seattle judge ruled the news organizations needed to comply with the subpoena. The judge said the images were "highly m... and r..." and "c... or n..." for the investigation, and the PD had thus met its burden to overcome the ...'s s... law. -The news organizations appealed the decision and later the PD withdrew its subpoena. The PD said it had already arrested one suspect and the images would likely be of less value to its investigation given the time it would take for the appeals process. Reporters must worry about another aspect of the p..., the problem that through some a... they may actually w... their right to refuse to testify! (Waiver of the Privilege) Example: A case in D.C. focuses on this dilemma. Six police officers brought a lawsuit against the city and top police officials. They were disciplined by the PD after a botched drug operation that failed to net hundreds of arrests expected. In the wake of the failed raid, Washington Post reporter Wheeler revealed in a newspaper story the Post had obtained secret plans for the raid. The six officers who were disciplined argued that leaks from high-level police officials, not from them, caused the raid to fail. And they subpoenaed Wheeler to find out where she got the plans for operation -The reporter refused to identify her source and was found in c... of c... The court said any p... the reporter might enjoy was w... when she told her husband and another man, both officers in the U.S. Park Police the name of her confidential source. "A reporter cannot choose in 1986 to d... her source to others and then choose in 1991 - as a witness in a judicial proceeding - not to make this same d...!" wrote Judge Levie. The D.C. Court of Appeals upheld this ruling -Wheeler was excused from testifying in the summer of 1991 when a mistrial was declared in the lawsuit, but a retrial was scheduled. The reporter's husband, to whom she had revealed the identity of her source, was forced to testify before the hearing was adjourned. "This could become a very effective harassment technique" said then executive director of the Reporters Committee for Freedom of the Press. She suggested a judge or attorney might say, "Well, journalists, I recognize you're covered by a shield law or a reporter's privilege, but I'm just going to bring in your spouse, your kid, your parents, your dog, anybody who's around, and see what they know." The question of w... a r...-s... p... also arises in the context of s... s... laws! Two cases involving the possible w... of such s... p... for journalists: Flores v. Cooper; McGarry v. University of San Diego There is no bright line rule marking when and how a reporter may in fact w... p...! The law is too diffuse to much such a g..., but reporters who have promised c... should keep this information COMPLETELY c...

Criminal Cases Courts have granted the 1A privilege to reporters quite freely in civil actions, in part at least, because there is no competing constitutional right involved! In a criminal case, however, the privilege for the reporter must be BALANCED with the Sixth Amendment right of the defendant to compel testimony on his or her behalf. Consequently, it is somewhat less likely a court will permit a reporter to refuse to answer questions about the identity of a confidential source or other confidential information. Courts most often apply slight variations of the Stewart test from the Branzburg case to determine whether the journalist will be compelled to testify. In U.S. v. Burke, the defendant was indicted (formally accused) 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 a 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. 1984, WA Supreme Court ruled that an Everett Herald reporter didn't have to reveal the names of several confidential sources he had used to prepare an article about alleged cult activities at an 80-acre farm near rural Snohomish, WA. The owner of the farm, Rinaldo, had been convicted of statutory rape, assault, coercion and intimidating a witness. A year after his conviction, several persons who had testified on Rinaldo's behalf at his trial stepped forward and admitted they had committed perjury. It was during his second trial for tampering with witnesses and other offenses that Rinaldo tried to force reporter Gary Larson to reveal the names of persons who gave the reporter information for six articles that had brought the activities at the farm to the attention of local authorities. Justice Dollivar, speaking for the court, ruled Rinaldo would have to show the information was necessary or critical to the defense and he had made a reasonable effort to get the material by other means. He couldn't make such a showing, so the subpoena was quashed. 2018, VA judge ruled in favor of a TV station in Roanoke in a battle involving a story about a former sheriff's deputy accused of sexual assault. The accuser said the former sheriff's deputy, Townley, sexually assaulted her in the backseat of a car in 09/2017. Townley was arrested and charged with SA shortly afterward. One month later, WDBJ-TV ran a story about the incident and arrest, relying on an interview with the accuser. The accuser asked WDBJ-TV not to reveal her identity, so the story referred to her by pseudonym. After the story aired, Townley tried to force WDBJ to turn over unaired material it had gathered in its reporting and interview with accuser. WDBJ objected and challenged the subpoena. "At the heart of this issue," VA judge wrote in Commonwealth v. Brent Matthew Townley, "is the journalistic privilege to maintain confidentiality, a privilege arising under the 1A, challenged by the Defendant's 5th and 6th Amendment rights to due process and right to fair trial." The VA Supreme Court recognized a qualified 1A-based privilege in that state, setting up a balancing test to determine when the 1A-based privilege yields to a defendant's right to fair trial. The privilege can be overcome only when the confidential information in question is essential to the defendant's case and the defendant can't obtain the information by other means. Here, Townley subpoenaed the unaired material from WDBJ on the grounds there might have been inconsistencies between statements the accuser made to the police and statements she made to WDBJ. But the judge ruled that Townley had no basis to support his accusation that WDBJ possessed info material to his defense! Townley "may not merely conduct a 'fishing expedition' in an effort to ascertain such statements" Judge Dorsey wrote in his ruling quashing the subpoena. The charges against Townley were ultimately dropped after the accuser declined to testify him in the case Grand Jury Proceedings Although the qualified privilege for reporters to refuse to reveal the identities of confidential sources in civil and criminal actions has been recognized by most lower federal courts and state supreme courts that have considered the question, these same courts have routinely REFUSED to extend the 1A privilege to grand jury proceedings. This refusal is true even though the grand jury's power to force disclosure isn't constitutionally guaranteed, as is the criminal defendant's right to compel a witness to testify. The obvious explanation for this reluctance on the part of judges is the single U.S. Supreme Court precedent on the question focused on grand jury testimony and in Branzburg v. Hayes the high court ruled no privilege existed! Example: 2001, 5th Circuit rejected an appeal from freelance writer Leggett who refused to turn over research materials to a federal grand jury in Houston. Leggett was trying to write a book about a 1997 murder that was being investigated by the DOJ. TX at that time had no shield law to protect reporters (though now it does). The appellate court rejected her effort to invoke the constitutional privilege. The court said while the privilege under the 1A may protect a journalist's confidential sources in civil cases, its applicability is diminished in criminal cases and it reaches its lowest point in grand jury proceedings. "The public's interest in law enforcement proceedings always outweighs the media interests," the court ruled. What happens when the individual requesting the information is a special prosecutor rather than a grand jury? 1st Circuit squarely addressed this in 2004 when it handed down its decision in In re Special Proceedings. The appellate court, in a blow to journalists, held "Branzburg governs in this case even though we are dealing with a special prosecutor than a grand jury," adding "the considerations bearing on privilege are the same in both cases." The court refused to extend a reporter's privilege when confidential information is requested by a special prosecutor. The case transpired in the context of an FBI investigation called "Operation Plunder Dome" into government corruption in Providence, RI. The investigation was successful, as it sent several city officials, including former Mayor Cianci, to prison. The 1A dispute involved efforts to obtain the name of a source that leaked to Taricani, a veteran TV reporter covering "Operation Plunder Dome" a copy of a secret surveillance videotape of an FBI informant handing an envelope that allegedly contained a $1,000 cash bribe to a city official named Corrente. Corrente was later convicted of bribery. Taricani's station, WJAR-TV, aired a portion of the secret tape, and a federal judge appointed a special prosecutor to determine who leaked it to Taricani. When T refused to give up his confidential source, he was hit by the judge with civil contempt and a $1,000-a-day fine. In holding the opinion in Branzburg, which rejected a testimonial privilege in grand jury proceedings, also controlled cases involving special prosecutors, the 1st Circuit affirmed the district court judge's civil contempt finding against T. "There is no doubt the request of T was for information highly relevant to a good faith criminal investigation and reasonable efforts were made to obtain the information elsewhere." Importantly, the appellate court cited somewhat favorably Judge Posner's opinion in the McKevitt case that was skeptical of the Branzburg opinion offering any protection to journalists beyond what ordinary relevance and reasonableness requirements would demand. With the appellate court decision going against T, the district court began assessing the $1,000-a-day fine against the reporter in 08/2004. By early 11/2004, T still had not revealed his source and in the process racked up and paid fines of about $85k. Recognizing the civil fine was not forcing T to give up his confidential source, U.S. District Judge Torres then ordered T tried for criminal contempt unless the reporter gave up his source. In taking this step, the judge suspended the $1,000 fine because the case was now about criminal contempt, not a civil penalty. Judge Torres soon found T guilty of criminal contempt. In 12/2004 shortly before T was to be sentenced for his criminal contempt conviction, an attorney named Bevilacqua Jr. came forward and admitted under oath that he was T's source for the videotape. B had represented one of the city officials, Pannone, convicted in the corruption scandal in Providence that T was investigating. B's admission, however did not negate the criminal contempt conviction of journalist T. On 12/9/2004, T was sentenced to six months of home confinement. Judge Torres chose home confinement than prison because of health concerns about T. The judge states "Except for his health and history of a good record, all of the factors call for a meaningful prison sentence." During his confinement, T could leave his home only for medical treatments. T was released from home confinement in 04/2005 upon recommendation from his probation officer, about two months earlier than originally scheduled. Despite the early release, the case of T represents a low mark in recent years in terms of the legal protection that journalists have - or don't have - in protecting their sources. Nonconfidential Information and Waiver of the Privilege While U.S. courts have been willing to permit journalists to protect confidential sources and confidential information, most have been far more reluctant to protect reporters when nonconfidential information is at issue! And most subpoenas issued today to journalists are to gain access to nonconfidential information. Typical is the ruling by the 5th Circuit that said reporters do not enjoy any privilege, qualified or otherwise, not to disclose nonconfidential information in a criminal case. This ruling seems to be in line with previous court rulings. A U.S. District Court ruled in 1990 a journalist who witnessed a beating of a criminal suspect by police had to testify on behalf of the injured party. "This court knows of no authority to support the proposition that such personal observations are privileged simply because the eyewitness is a journalist," judge ruled. Photographers have been forced to surrender photos they have taken of building fires, industrial accidents, fatal auto accidents or even of an individual who has filed a personal injury lawsuit against an insurance company. The press has generally been unable to convince judges that it has an important interest at stake when it refuses to cooperate with those who seek nonconfidential information. This sentiment was true in 2006 when 9th Circuit denied 1A protection of Joshua Wolf, who videotaped a protest demonstration and refused to turn over the tape to government authorities. The appellate court wrote "the taped activities occurred entirely in public and didn't occur in response to Wolf's prompting, whether by questions or recording. He simply videotaped what people did in a public place. Wolf does not claim that he filmed anything confidential nor that he promised anyone anonymity or confidentiality. Therefore, this case doesn't raise the usual concerns in cases involving journalists." Even when federal courts have recognized a qualified privilege to protect nonconfidential information, the scope of the privilege has been very limited! Example: 2nd Circuit, which includes NY, CT, VT in 1998 recognized a qualified privilege for nonconfidential press information but noted where nonconfidential information is at stake, the showing needed to overcome the journalists' privilege is less demanding than for material acquired in confidence. Courts have shown reluctance to protect reporters' nonconfidential information under state shield laws as well. June 2020, Seattle Police Department subpoenaed five news organizations, requesting each outlet turn over photos and videos - including unaired material - captured during their coverage of a protest in that city that turned violent. The PD wanted images from a 90-minute period of the protest to help their efforts identifying multiple people who allegedly stole firearms from police vehicles and one person who allegedly set fires in the area. In 7/2020, a Seattle judge ruled the news organizations needed to comply with the subpoena. The judge said the images were "highly material and relevant" and "critical or necessary" for the investigation, and the PD had thus met its burden to overcome the state's shield law. The news organizations appealed the decision and in 09/2020 the PD withdrew its subpoena. The PD said it had already arrested one of the suspects and in general the images would likely be of less value to its investigation given the time it would take for the appeals process to proceed. The executive editor of the Seattle Times said the subpoena and others like it jeopardized the press' independence ("The media exist in large part to hold governments, including law enforcement agencies, accountable to the public. We don't work in concert with the government, and it's important to our credibility and effectiveness to retain our independence from those we cover.") Reporters must worry about another aspect of the privilege, the problem that through some action they may actually waive their right to refuse to testify! A case in D.C. focuses on this dilemma. Six police officers brought a $9 million lawsuit against the city and top police officials. They were disciplined by the PD after a botched 1986 drug operation that failed to net the hundreds of arrests expected. In the wake of the failed raid, Washington Post reporter Wheeler revealed in a newspaper story the Post had obtained secret plans for the raid. The six officers who were disciplined argued that leaks from high-level police officials, not from them, caused the raid to fail. And they subpoenaed Wheeler to find out where she got the plans for operation. The reporter refused to identify her source and was found in contempt of court. The court said any privilege a reporter might enjoy in such an instance when, in 1986, she told her husband and another man, both officers in the U.S. Park Police the name of her confidential source. "A reporter cannot choose in 1986 to disclose her source to others and then choose in 1991 - as a witness in a judicial proceeding - not to make this same disclosure" wrote Judge Levie. The D.C. Court of Appeals upheld this ruling. Wheeler was excused from testifying in the summer of 1991 when a mistrial was declared in the lawsuit, but a retrial was scheduled. The reporter's husband, to whom she had revealed the identity of her source, was forced to testify before the hearing was adjourned. "This could become a very effective harassment technique" said Kirtley, then executive director of the Reporters Committee for Freedom of the Press. She suggested a judge or attorney might say, "Well, journalists, I recognize you're covered by a shield law or a reporter's privilege, but I'm just going to bring in your spouse, your kid, your parents, your dog, anybody who's around, and see what they know." The question of waiving a reporter-source privilege also arises in the context of state shield laws. Two cases involving a discussion of the possible waiver of such statutory privileges for journalists are Flores v. Copper Tire and Rubber Co. and McGarry v. University of San Diego. There is really no bright line marking when and how a reporter may in fact waive the privilege. The law is too diffuse for such a generalization. But reporters who have promised confidentiality should keep the information COMPLETELY confidential.

Invasion of privacy is a multifaceted concept designed to redress a variety of grievances, including -C... e... of one's ... or ... -... into p... ... -The public ... of ... or e... ... about someone -And the l...-like publication of embarrassing ... information about a person Conceptions of Privacy -Concept of right to privacy didn't enter American ethos until end of 19th and beginning of 20th centuries. Today there is no doubt the privacy we have left is in jeopardy (concerns raised after 9/11 and a new generation of Americans weaned on exhibitionist reality TV and social media platforms designed to ensure maximum sharing by individual users) -Privacy is an ... concept - what one ... considers private another may not; and what people will consider private will vary from ... to ..., ... to ... and ... to ... Three Conceptions of Privacy 1. Privacy of Autonomy -Private and personal ...-... by an ... ..., free from government interference and intrusion -Most controversial niche is right for woman to choose to have an abortion found in Roe v. Wade (1973) (since overruled) -Lawrence v. Texas (... ... relating to marriage, procreation, contraception, family relationships, child rearing, education) 2. Privacy of Space -People possess a ... or ... ... of privacy into which others may not intrude or trespass -"T... ..." -Intrusion provides a remedy for violation of one's ... ... by means like trespass or high-tech recording of images and sounds 3. Privacy of Information -The right to informational privacy - there are some ... and ... about oneself that shouldn't be revealed either to or by others or that you should be able to control what other people do with ... about you -Google, Facebook, Yahoo! collect massive amounts of information about people - sometimes sell to businesses, other individuals, government What all three conceptions have in common is the notion of ... - the ability of individuals to control decisions, physical space, and flow of information Four Primary Sources of Privacy Rights in U.S. 1. ... Law -At both federal and state ... levels, courts recognize privacy rights either explicitly in text or implicitly through language -What does the U.S. ... and amendments not include? But the U.S. Supreme Court? -... ... - unreasonable searches and seizures in their homes, papers, effects - requires warrant by judge upon showing of probable cause by law enforcement officers - to search such places and items -... ... - the term 'liberty' within ... ... Clause -... of at least ... states specifically...? (California, Florida, Hawaii). The right of privacy is thus framed in many different ways in state ... 2. ... Law -Many ... at both federal and state levels protect privacy -Family Educational Rights and Privacy Act (limit public access to student educational records) (Federal) -Health Insurance Portability and Accountability Act (protects privacy of individually identifiable health info possessed by health-care providers and health plans) (Federal) -Children's Online Privacy Protection Act (protects privacy of children and parents when using the Internet and digital tech) (Federal) -States also have ... that protect privacy interests -Example: Post-mortem publicity rights in some states (... that give heirs the right to control publicity interests in name and likeness of deceased celebrities) -Prevent public disclosure of autopsy images (Florida) (protect privacy of deceased's loved ones) 3. ... Law -Three ...-law privacy causes of action (legal theories of recovery) a) .../right of p... b) ... into s... c) ... d... of ... ... (publication of ... ...) Provide remedies to individuals for certain invasions of their privacy interests. A fourth ... law privacy theory called ... ... - overlaps significantly with defamation law and an increasing number of states refuse to recognize its existence! 4. ... Law -Federal Trade Commission finds self playing front and center role as nation's chief privacy policy maker and enforcer -FTC has settled claims against Facebook, Google, Snapchat regarding alleged misrepresentations and deceptions in their privacy policies -Today concerned about privacy implications of facial recognition tech Invasion of Privacy -Mass media integrally involved in growth of law of privacy, vast majority of early lawsuits were aimed at the press -The law is ... and still d..., unlike libel law! While concerns over the right to privacy range far beyond the behavior of mass media, it was the intrusive newspaper reporting of the late 19th century that was likely the genesis of the law that exists today The Growth of Privacy Laws -The right to 'privacy' became a public issue in late 19th Century: U.S. rapidly becoming an urban nation -Concept of privacy enshrined in Bill of Rights, but development of big city ... ... and innovations in ... gave rise to privacy torts today. Streets filled with poor immigrants and first-generation Americans - big city ... ... used variety of sensational schemes to attract these possible readers. Editors often played out the lives of the rich and famous on their pages, permitting readers to vicariously enjoy wealth, status, celebrity. -This kind of journalism pushed two Boston lawyers, ... D. ... and ... D. ... to use the pages of the Harvard Law Review to propose a legally recognized ... to ....! The piece was "The ... to ..." appeared in 1890, the fountain from which the modern law of privacy law flowed -The lawyers claimed they were offended by the ... in the press, said it overstepped the bounds of p... and d... -To stop this illicit behavior, the lawyers proposed the courts recognize the ... ... of ...; citizens should be able to go to court to stop such unwarranted intrusions and also secure ... ... for the hardship they suffered from such prying and from publication of private material about them -The first state to recognize the law of privacy...? 13 years after - prohibited the commercial exploitation of an individual and called it a right to privacy -The law of privacy grew s... and s... over the next century. All but ... states recognize some kind of ... ... to ...! -Other states have rejected one or more of the ... ... that constitute the modern right to privacy. And until the European Convention on Human Rights became a part of the law in Western Europe, nations like England and France didn't recognize the invasion of privacy tort -Privacy law is far more id... from ... to ... than is libel law -Less easy to make ... about privacy law that reflect the law in every state or in most states than say libel law -Part of the problem is some states have protected the right to privacy through ..., and these are often peculiar (New York) Today the law of privacy encompasses protection of at least four separate legal wrongs... -Three have nothing to do with the law outlined by Warren and Brandeis in 1890 1. ... of one's ... or ... for ... purposes -Taking someone's ..., ..., ..., or ... and using it for ... gain without permission -Technically the only right of privacy guaranteed in some of the states that have privacy statutes -When a ...'s ... or ... is used without their consent, the ... is said to affect the ...'s right of ... -The laws are limited to outlawing this one kind of behavior, but as a matter of fact - judicial construction of these laws have allowed them to encompass some other aspects of invasion of privacy too 2. ... upon an individual's s... or s... -Area of law growing rapidly today, what most people think of when thinking about invasion of privacy (IOP) -... upon the ... and into the private life of a person is prohibited. Drones? 3. Public d... of ... ... about an individual (... of ... ...) -T..., ... ... about a person -Gossip, substance of private conversations, details of a private tragedy or illness -Hulk Hogan and Gawker (hidden sex tape featuring him) 4. Publishing material that puts the individual in a ... ... -Outgrowth of appropriation, doesn't at first glance seem like IOP but is regarded as such by the law -Overlaps with ... significantly and growing number of states don't look at it favorably The growth of Internet communication has generated substantial challenges in the application of the law of privacy -Relative ease of access and use of these systems, resulting in numerous privacy problems (FTC, mobile security updates report (varying practices) - confusion of consumers, leaving devices and data at risk for cyberattacks) Caveats or warnings concerning privacy law 1. Only ... enjoy their right to privacy! ..., l... ..., a..., etc. can protect their reputation through libel law but do not have right to privacy! 2. The right to privacy is most easily understood if each of the four torts/areas of law are viewed as d... u...! Do not try to apply defenses applicable in one area to another. Doesn't work! 3. There is much about privacy law that d... l... - challenging that l... serves little purpose 4. The law of privacy is ...! A lot of legal questions haven't been answered, or answered satisfactorily. Bad decisions abundant

Chapter 7: Invasion of Privacy - Appropriation and Intrusion Invasion of privacy is a multifaceted concept designed to redress a variety of grievances. Include the commercial exploitation of an individual's name or likeness, intrusion into private spaces, the public revelation of private and embarrassing facts about someone and the libel-like publication of embarrassing false info about a person. Conceptions and Sources of Privacy in the US The abstract concept of right to privacy didn't enter American ethos until end of 19th and beginning of 20th centuries. Now little doubt the privacy that still exists is in jeopardy; partly because of concerns raised after 9/11 terrorist attack and partly because a new generation of Americans, weaned on exhibitionist reality TV shows and social media platforms that are designed to ensure maximum sharing by individual users, seems more willing to give away their privacy in exchange for opportunity to become online famous. Privacy is an amorphous concept - what one generation considers private another may not, and what people consider private will vary from time to time, place to place and culture to culture. At least three basic conceptions of privacy: 1. Privacy of Autonomy Private and personal decision making by an autonomous individual, free from government interference and intrusion. Most controversial niche of this conception is the right of a woman to choose to have an abortion found in the US Supreme Court's 1973 ruling Roe v. Wade. In Lawrence v. Texas, "laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education" There is a right of decisional privacy possessed by individuals (and sometimes couples and families) that should be free from government interference. 2. Privacy of Space People possess a geographical or physical zone of privacy into which others may not intrude or trespass. "Individual's territorial solitude" (Kang). A person's home is their castle. The legal theory called intrusion provides a remedy for violations of one's physical space by means such as trespass or high-tech recording of images and sounds. 3. Privacy of Information The right of informational privacy - there are some facts and data about oneself that shouldn't be revealed either to or by others or that you should be able to control what other people do with information about you. Relevant today, as companies like Google, Facebook, Yahoo collect massive amounts of info about people - these companies are all in the data collection business and likely possess much info about you - that they sometimes sell to businesses, other individuals and even the government. What all three conceptions have in common is the notion of control - the ability of individuals to control decisions, physical space and the flow of information. Discussions and debates on privacy frequently implicate other concepts like access, secrecy, anonymity. Four primary sources of privacy rights in the United States 1. Constitutional law: At both federal and state constitution levels, courts recognize privacy rights, either explicitly in text of constitutions or implicitly through language. Neither the US Constitution nor amendments use the word 'privacy' the US Supreme Court has recognized an implied federal constitutional right to privacy residing in multiple amendments. -4th Amendment: Protects people against unreasonable searches and seizures in their homes, papers and effects, generally requires a warrant issued by a judge, upon a showing of probable cause by law enforcement officers, to search such places and items. Fourth Amendment implies privacy in one's home, papers and effects. In addition Supreme Court has said term 'liberty' within the 14th Amendment's Due Process Clause includes certain privacy interests. Constitutions of at least 10 states specifically include the word 'privacy' or 'private' in their texts. Article 1, Section 10 of California Constitution - people have an inalienable right in 'pursuing and obtaining safety, happiness and privacy' Article 1, Section 23 of Florida Constitution 'every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein' Hawaii Article 1, Section 6 'the right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest' Right of privacy is thus framed in many different ways in state constitutions 2. Statutory law: Many statutes at both the federal and state levels protect privacy levels. The federal Family Educational Rights and Privacy Act (FERPA) limits public access to student educational records, while the federal Health Insurance Portability and Accountability Act (HIPAA) protects privacy of individually identifiable health info possessed by health-care providers and health plans. Federal Children's Online Privacy Protection Act (COPPA) designed to protect privacy of children and parents when using the Internet and other modes of digital tech. States also have statutes that protect privacy interests. Several states now have statutes that give heirs the right to control the publicity interests in the names and likenesses of deceased celebrities. States like Florida have adopted statutory exemptions to their public records laws to prevent the public disclosure autopsy images. Such exemptions protect the privacy interests of the deceased's loved ones. 3. Common law: Three common-law privacy causes of action (legal theories of recovery) 1) appropriation/right of publicity, 2) intrusion into seclusion, 3) public disclosure of private facts (publication of private information). These common law privacy theories provide remedies to individuals for certain invasions of their privacy interests. A fourth common law privacy theory called false light - significantly overlaps with defamation law and an increasing number of states refuse to recognize its existence. Some states have adopted statutes that codify all or part of these common law privacy theories. 4. Administrative law: Increasingly, the Federal Trade Commission (FTC) finds self playing a front and center role as nation's chief privacy policy maker and enforcer. 2015, FTC issued report "Internet of Things: Privacy and Security in a Connected World" FTC settled claims against both Facebook, Google, Snapchat regarding alleged misrepresentations and deceptions in their privacy policies. The FTC today is concerned about the privacy implications of facial recognition tech used by both government and private sectors. Tech has forced many changes in the way we consider privacy. Invasion of Privacy Mass media integrally involved with growth of law of privacy, since vast majority of early lawsuits were aimed at the press. Over past century, state legislatures and courts have fashioned legal rights that permit people who believe they have been injured to sue the mass media for infringing on their rights of privacy. The law is ragged in many ways it is young and still developing, unlike libel law. While concerns over the right to privacy range far beyond the behavior of mass media, it was the intrusive newspaper reporting of the late 19th century that is likely the genesis of the law that exists today. The Growth of Privacy Laws Not until the end of the 19th century the need for a right to 'privacy' became a public issue in the US. America rapidly becoming an urban nation. While concept of privacy is enshrined in portions of our Bill of Rights long before this era, the development of big city daily newspapers and innovations in photography gave rise to what would become the privacy torts we see. The streets of many cities clogged with poor immigrants or first-gen Americans. Big city daily newspapers used a variety of sensational schemes to attract these potential readers. Editors often played out the lives of the 'rich and famous' on the pages of their papers, permitting readers to vicariously enjoy wealth, status and celebrity. This kind of journalism pushed two Boston lawyers, Samuel D. Warren and Louis D. Brandeis, to use the pages of the Harvard Law Review to propose a legally recognized right to privacy. Warren urged his friend and future Supreme Court justice Brandeis to help him write the piece, "The Right to Privacy." Article appeared in 1890 and is the fountain from which the modern law of privacy has flowed. Pair argued, "Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction 'what is whispered in the closet shall be proclaimed from the house-tops' Warren and Brandeis said they were offended by the gossip in the press, said overstepped the obvious bounds of propriety and decency. "To satisfy a [salacious] taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent (lazy), column upon column is filled with idle gossip, which can only be procured (obtained) by intrusion upon the domestic circle. The common law has always recognized a man's house as his castle, impregnable, often even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or salacious curiosity?" To stop this illicit behavior, the two lawyers proposed the courts recognize the legal right of privacy; citizens should be able to go to court to stop such unwarranted intrusions and also secure money damages for the hardship they suffered from such prying and from publication of private material about them. 13 years from the time Warren and Brandeis article was first published until the first state recognized the law of privacy. The state of New York adopted law that prohibited the commercial exploitation of an individual and called it a right to privacy. Interestingly, the right this new statute sought to safeguard was not even mentioned in the Harvard Law Review article. The law of privacy grew slowly and sporadically (occasionally, at irregular intervals) over the next century. All but three states today recognize some kind of legal right to privacy. North Dakota has refused to recognize the tort, there have been no reported privacy cases in either Vermont or Wyoming. Other states have rejected one or more of the four torts that constitute the modern right to privacy. And until the European Convention on Human Rights became a part of the law in Western Europe, nations like England and France didn't recognize the invasion-of-privacy tort. Privacy law is far more idiosyncratic (distinctive, individual) from state to state than is libel law. It is somewhat easier to make generalizations about libel law that reflect the law in every state or in most states than generalizations on the law of privacy. Part of the problem is some states have protected the right to privacy through statutes, and these often are very peculiar. The New York statute, is quite explicit about how the right to privacy is protected in the state, and some aspects of the law common in most states are not a part of the New York law. Today the law of privacy encompasses protection for at least four separate legal wrongs. Three have nothing to do with the law outlined by Warren and Brandeis in 1890. Four Areas of Privacy Law 1. Appropriation of one's name or likeness for trade purposes (Appropriation) 2. Intrusion upon an individual's solitude or seclusion (Intrusion) 3. Public discourse of private facts about an individual (Publication of Private Information) 4. Publishing material that puts the individual in a false light (False Light) The first kind of invasion of privacy is appropriation, taking a person's name, picture, photograph or likeness and using it for commercial gain without permission. Technically the only right of privacy guaranteed in some of the states that have privacy statutes. When a celebrity's name or likeness is used without their consent, the appropriation is said to affect the celebrity's right of publicity. 2016, Lohan sued video game maker Rockstar Games claiming fictional character Jonas from GTA V violated her right of publicity. The laws are limited to outlawing this one kind of behavior. But as a matter of fact, judicial construction of these laws has allowed them to encompass some other aspects of invasion of privacy as well. Intrusion is the second kind of IOP, area of the law growing rapidly today, what most people think of when IOP is mentioned. Intrusion upon the solitude and into the private life of a person is prohibited. The use of drones raises serious concerns on intrusion. Publication of private information, third kind, truthful private info about a person. What is truthful private info? Gossip, substance of private conversations and details of a private tragedy or illness have been used as basis of a suit. 2016, Hogan won jury verdict of more than $100 million upon Gawker's publication of a hidden-camera sex tape featuring him. False light, publication of material that places a person in false light. An outgrowth of the first area of the law, appropriation, and doesn't at first glance seem like IOP but is regarded as such by the law. It overlaps with libel significantly and because growing number of states don't look favorably upon false-light category of privacy. The growth of communication via the Internet has generated substantial challenges in the application of the law of privacy. Relative ease of access and use of these systems has resulted in numerous privacy problems. 02/2018, FTC released report "Mobile Security Updates: Understanding the Issues" Report summarized from an investigation into the security update practices of several mobile design manufacturers. Report found mobile device manufacturers' practices vary significantly regarding the deployment of security updates for their devices. FTC suggested this potentially creates confusion for consumers, leaving their devices and data at risk for cyberattacks. A few caveats or warnings appropriate before discussing four aspects of privacy law! First, only people enjoy protection for their right to privacy. Corporations, labor unions, associations, etc. can protect their reputation through libel law but DO NOT have a right to privacy! The right to privacy is most easily understood if each of the four areas of law is considered as a discrete unit. Do not try to apply the defenses that may be applicable in appropriation to publication of private information. They don't work! There is much about the law of privacy that defies logic. Why is putting someone in a false light considered an IOP, for example? Challenging the logic of the law serves little purpose and makes learning it more difficult. Finally, the law of privacy is YOUNG - a little over 130 years old if you start with Warren and Brandeis's proposal. A lot of legal questions that haven't been answered, or at least answered satisfactorily. Bad court decisions are abundant.

Trial-Level Remedies 4. Continuance When a trial is continued, or a continuance is granted, the trial is d...! By p... a trial for weeks or even months, a judge expects people in the community will f... at least some of what was written/broadcast about case and this expectation is probably legitimate! However, before a trial may be p..., the defendant must sacrifice their right to a s... t..., something guaranteed under the ...! Because courtrooms in the U.S. are clogged, there are few truly s... t... today, but a continuance d... a trial even longer. The defendant may spend the additional t... in ... if b... has not been posted. It is also possible, even likely, when the trial is set to begin, p... about the case will reappear in the mass media But a continuance is a perfect solution in some cases! Example: Imagine a hearing in a medical malpractice suit is scheduled to start on a Monday morning, when the Sunday paper carries a long feature story on the skyrocketing costs of physicians' malpractice insurance because of the large malpractice judgments handed down in courts. The article points out that physicians pass the additional insurance charges along to patients. Jurors, who also pay doctors' bills, might hesitate to award a judgment to an injured patient knowing that it would raise insurance rates and ultimately cost patients more. The judge therefore could continue the case for two months to let the story fade from the public mind 5. Admonition to the jury Once a jury is impaneled, its members are instructed to render their verdict in the case solely on the b... of ... presented in the c...! Judges believe most jurors take this admonition seriously. In the single major study in which real jury deliberations were examined, researchers found jurors listen carefully to and follow the cautionary instructions given to them by the judge! Failure to follow these orders can result in r... from the ..., c... for c... or both! Example: In the Aurora theater shooting case, the judge released three jurors because one had discussed media coverage of the trial with the other two Jurors are also warned not to r... n... s... or w... T... b... about the case while the trial is being held But in this age of ha... e... d..., many judges go further Example: The Judicial Conference Committee on Court Administration and Case Management released model jury instructions for use during voir dire: "If selected as a juror, you cannot d... the case with your fellow ... before permitted to do so at the conclusion of the trial, or with a... e... until after a decision has been reached by the jury. Therefore, you cannot t... about the case or have any communications about the case with anyone, including your fellow ..., until I tell you that such discussions may take place. In addition to not having ...-to-... d... with your fellow ... or a... e..., you cannot communicate with anyone else about the case in any way, whether in w..., or through e..., t... m..., b..., or c..., or on s... m... websites and apps" "You also cannot conduct any type of in... or p... r... or in... regarding any matters related to this case. Therefore, you cannot use your c..., iP..., c... or any other device to do any r... or in... regarding this case, the matters in the case, the legal issues in the case, or the individuals or other entities involved in the case. And you must ignore any information about the case you might see, even accidentally, while browsing the ... or on your s... m... feeds. This is because you must base the decision you will have to make in this case solely on what you ... and ... in this c..." The Committee also has model instructions to give to jurors ... the t... begins and instructions to be given at the end of each day of the c...! Many judges feel these admonitions are enough to d... jurors from using s... m...! Example: 2014, nearly 500 federal judges were asked if admonitions to jurors against using s... m... during a trial were effective. Of the 494 who responded, only 33 reported any detectable instances of jurors using social media State courts have a... or will a... their own r...! Judges have discovered some jurors used their personal communication devices to gather o... i... about the case d... the t... and to c... with p... o... the trial! Example: 2016, California considered a bill that would allow judges to fine jurors up to $1,500 for the use of ... ... and the ... after evidence surfaced of jurors using Google to research details about the case. California juries are already admonished to consider only ... presented in c... and to not d... the case until they are in the deliberating room after hearing all the evidence. In addition, a 2011 state law makes improper electronic or wireless c... or r... by a juror punishable by c... c... In the age of growing s... use, supporters of the bill argue fines could further hold jurors accountable The Florida Supreme Court banned jurors from using e... de... in 2012. During a criminal trial before jury instructions and again when a case is submitted to the jury for deliberations Florida judges must tell jurors they must not use "e... de... or c... to t... about this case, including t..., t..., b..., e..., posting information on a w... or c... r..., or any other means at all" 6. Sequestration of the jury Once a jury is selected (impaneled), the problem of p... p... di...! But other problems emerge! It is not uncommon for jurors to be removed from the courtroom during a trial while attorneys make arguments about the ad... of ... or possible t... of a w...! Except in extraordinary cases, the public and press r... in the courtroom during these episodes, and what is discussed can and likely will be reported in newspapers/TV. Or p...l information may be generated by people o... the c... during the t... and again be reported by the news media! In some instances, the aforementioned admonition to jurors may be considered insufficient to shield them from this p... and so the members of the panel are i... from o... during the trial!!! They are not allowed to go ... each evening but are h... in a h...; they eat their meals together, relax together, go to and from the courthouse together. T... c... and e... (if possible) are s... by c... p...; n... and T... b... are also s... for stories about the trial This process is sequestration of the jury and is mandatory in some states for trials that last longer than ... ..., unless both the s... and d... agree to w... the procedure! In a few others sequestration of the jury is required in all d... p... cases. In most jurisdictions, however, the jurors are i... ONLY if the j... specifically orders it! Sequestration of the jury can have serious drawbacks for the s..., the ... and the c... j... s... 1. It costs the state a lot of ... to h... and f... the ...! Example: NY spent $2.5 million/year putting up jurors overnight until mandatory sequestration was abandoned in 2001. 2. It costs jurors both ... and ...! Staying in a h... and eating in r... for two/three days may be considered fun by some, but the trials in which jurors are sequestered often last ... or even ... L... are seriously d..., and few jurors can afford a loss of i... over such a p... p... of t...! Example: In extremely l... trials, some jury members suffering hardships will ask to be e... before the trial is c... 3. Many attorneys fear the c... j... s... may be compromised. Sequestration may keep jurors free from un... p... p... about the case, but could generate a p... in jurors of a different kind, a p... against one party or the other for keeping them away from f... and f... from an e... p... ... ... express this fear most often, saying they believe jurors will blame the ... for their hardships! Example: But it was reported after the 1995 OJ Simpson criminal trial (acquitted), some jurors who were sequestered for almost as long as Simpson was jailed, said they empathized with the defendant because of this. The jurors in the second OJ trial, the civil suit in which he was found guilty, were not sequestered

4. Continuance When a trial is continued, or a continuance is granted, the trial is delayed. By postponing a trial for weeks or even months, a judge expects the people in the community will forget at least some of what has been written and broadcast about the case and that expectation is probably legitimate. However, before a trial may be postponed, the defendant must sacrifice their right to a speedy trial, something guaranteed under the Constitution. Because courtrooms in American are clogged, there are few truly speedy trials today, but a continuance delays a trial even longer. The defendant may spend this additional time in jail if bail has not been posted. It is also possible, even likely, that when the trial is finally set to begin, publicity about the case will reappear in the mass media. But a continuance is a perfect solution in some cases! Imagine that a hearing in a medical malpractice suit is scheduled to start on a Monday morning, when the Sunday paper, quite innocently, carries a long feature story on the skyrocketing costs of physicians' malpractice insurance because of the large malpractice judgments handed down in courts. The article points out that physicians pass the additional insurance charges along to patients. Jurors, who also pay doctors' bills, might hesitate to award a judgment to an injured patient knowing that it would raise insurance rates and ultimately cost patients more. The judge therefore could continue the case for two months to let the story fade from the public mind. 5. Admonition to the Jury Once a jury is impaneled, its members are instructed by the judge to render their verdict in the case solely on the basis of evidence presented in the courtroom. Judges say they believe most jurors take this admonition quite seriously. In the single major study in which real jury deliberations were examined, researchers found that jurors listen carefully to and follow the cautionary instructions given to them by the judge. Failure to follow the orders can result in removal from the jury, citation for contempt of court or both. Example: In the Aurora theater shooting case, the judge released three jurors because one had discussed media coverage of the trial with the other two. Jurors are also warned not to read newspaper stories or watch TV broadcasts about the case while the trial is being held. But in this age of handheld electronic communication devices, many judges go further. In 06/2020, the Judicial Conference Committee on Court Administration and Case Management released model jury instructions for use during voir dire: "If you are selected as a juror in this case, you cannot discuss the case with your fellow jurors before you are permitted to do so at the conclusion of the trial, or with anyone else until after a decision has been reached by the jury. Therefore, you cannot talk about the case or otherwise have any communications about the case with anyone, including your fellow jurors, until I tell you that such discussions may take place. Thus, in addition to not having face-to-face discussions with your fellow jurors or anyone else, you cannot communicate with anyone else about the case in any way, whether in writing, or through email, text messaging, blogs, or comments, or on social media websites and apps (like Twitter, Facebook, Instagram, LinkedIn, YouTube, WhatsApp, and Snapchat). [OPTIONAL: If you feel that you cannot do this, then you cannot let yourself become a member of the jury in this case. Is there anyone who will not be able to comply with this restriction?] "You also cannot conduct any type of independent or personal research or investigation regarding any matters related to this case. Therefore, you cannot use your cellphones, iPads, computers or any other device to do any research or investigation regarding this case, the matters in the case, the legal issues in the case, or the individuals or other entities involved in the case. And you must ignore any information about the case you might see, even accidentally, while browsing the internet or on your social media feeds. This is because you must base the decision you will have to make in this case solely on what you hear and see in this courtroom." In addition, the Committee has model instructions to give to jurors before the trial begins and instructions to be given at the end of each day of the case. Many judges feel these types of admonitions are enough to discourage jurors from using social media. In 2014, nearly 500 federal judges were asked if admonitions to jurors against using social media during a trial were effective. Of the 494 who responded, only 33 reported any detectable instances of jurors using social media State courts have adopted or will adopt their own rules. Judges have discovered some jurors used their personal communication devices to gather outside information about the case during the trial and to communicate with people outside the trial. 2016, California considered a bill that would allow judges to fine jurors up to $1,500 for the use of social media and the Internet after evidence surfaced of jurors using Google to research details about the case. California juries are already admonished to consider only evidence presented in court and to not discuss the case until they are in the deliberating room after hearing all the evidence. In addition, a 2011 state law makes improper electronic or wireless communications or research by a juror punishable by contempt charges. In the age of growing smartphone use, supporters of the bill argue fines could further hold jurors accountable. The Florida Supreme Court banned jurors from using electronic devices in 2012. During a criminal trial before jury instructions and again when a case is submitted to the jury for deliberations Florida judges must tell jurors they must not use "electronic devices or computer to talk about this case, including tweeting, texting, blogging, emailing, posting information on a website or chat room, or any other means at all" Sequestration of the Jury Once a jury is selected, or impaneled, the problem of pretrial publicity diminishes. But other problems emerge! It is not uncommon for jurors to be removed from the courtroom during a trial while attorneys make arguments about the admissibility of evidence or possible testimony of a witness. Except in extraordinary cases the public and press REMAIN in the courtroom during these episodes, and what is discussed can and likely will be reported in newspapers and on TV. Or prejudicial information may be generated may be generated by people outside the courtroom during the trial and again be reported by the news media. In some instances, the aforementioned admonition to the jurors may be considered insufficient to shield them from this publicity, and so the members of the panel are isolated from outsiders during the trial! They are not allowed to go home each evening but are housed in a hotel. They eat their meals together, relax together, go to and from the courthouse together. Telephone calls and email (if permitted) are screened by court personnel. Newspapers and TV news broadcasts are also screened for stories about the trial. This process is called sequestration of the jury and is mandatory in some states for trials that last longer than a day, unless both the state and the defense agree to waive the procedure. In a few other states sequestration of the jury is required in all death penalty cases. In most jurisdictions, however, the jurors are isolated only if the judge specifically orders it. Sequestration of the jury can have serious drawbacks for the state, the jurors and the criminal justice system. It costs the state a LOT of money to house and feed the jurors. NY reportedly spent $2.5 million a year putting up jurors overnight until mandatory sequestration was abandoned in 2001. It costs jurors both time and money. Staying in a hotel and eating in restaurants for two or three days may be considered a lark (fun) by some people, but the trials in which jurors are sequestered often last weeks or even months. Lives are seriously disrupted, and few jurors can afford a loss of income over such a prolonged period of time. In extremely long trials, some jury members suffering hardships will ask to be excused before the trial is completed. And many attorneys fear the criminal justice system may be compromised as well. Sequestration may keep jurors free from unwanted prejudicial publicity about the case, but could generate a prejudice in jurors of a different kind, a prejudice against one party or the other for keeping them away from family and friends for an extended period. Defense attorneys express this fear most often, saying they believe jurors will blame the defendant for their hardships. But it was reported after the 1995 OJ Simpson criminal trial, in which he was acquitted, that some jurors, who were sequestered for almost as long as Simpson was jailed, said they empathized with the defendant because of this. The jurors in the second OJ trial, the civil suit in which he was found guilty, were not sequestered. Summary Trial courts have many ways to compensate for the prejudicial pretrial publicity in a criminal case. Each citizen is questioned by the attorneys and the judge before being accepted as a juror. During this voir dire examination, questions can be asked of the potential jurors about the kinds of information they already know about the case. People who have already made up their minds about the defendant's guilt or innocent can be excluded from the jury. Courts have the power to move a trial to a distant county to find a jury that has not been exposed to the publicity about the case that has been generated by local mass media. While such a change of venue can be costly, it can also be an effective means of compensating for sensational publicity about a case. A trial can be delayed until the publicity about the case dies down. The defendant must waive the right to a speedy trial, but, except in highly sensational cases, granting a continuance in a trial can thwart the impact of the massive publicity often generated in the wake of a serious crime. Jurors are always admonished by the judge to base their decision on the facts presented in court and not to read or view any news stories about the case or use their personal handheld communication device while they are on the jury. There is evidence that they take these warnings quite seriously. In important cases, it is always possible to seclude, or sequester, the jury after it is chosen to shield it from publicity about the trial.

Accessible and Inaccessible Documents The Supreme Court and lower courts have also held there is a right to access court documents! In addition, in a series of recent cases a media organization has been pressing courts to rule that access must be g... q... or at least in a t... manner! Courthouse News Services started brining cases against various state courts in 2018, arguing the ... ... guarantees t... a... to court documents! 7th Circuit: Up to the state courts to decide what level of press access is r..., ap..., or f...! -IL courts started using electronic filing. One county clerk's office printed out e-filed complaints for reporters to receive as soon as the complaint was received -In 2015 the office started posting complaints online only after administrative processing, which d... a... for eager reporters -CNS sued in federal court, arguing the new processing system denied access to almost 40% of e-filed complaints on the same day of filing -2018, Courthouse News Service v. Brown, 7th Circuit ruled issue was for the state courts to decide first 9th Circuit: There is a ... ... right to t... a... to court documents! -Appellate court said the press had a "q... r... of t... a..." but the ... ... doesn't guarantee "i... a..." A court can impose "reasonable restrictions" that result in "incidental delays" so long as they are "c...-n..., n... t... and necessary to preserve the court's important i... in the fair and orderly a... of j..." -CNS sued to challenge a county policy that didn't make new complaints publicly available until they were fully p... by court officials Federal district court, VA: The ... ... requires state courts to make complaints available on the day they are filed "Members of the press and public, have h... enjoyed a t... of clerks making most newly filed civil complaints publicly available on the day they are filed" -Judge rejected the clerks' defenses and found the ... ... guarantees a q... r... of a... to newly filed complaints contemporaneous with their filing ... While a wide range of documents have been p... o... and hence potentially accessible by press and public, s... court records is a GROWING PROBLEM Courts will agree to s... records to help litigants avoid e..., to encourage them to s... d... and a variety of other reasons! Example: -Records in more than 2,000 court cases in OK were s... between 2003-7 These included d... documents, wr... d... settlements and even n... changes! -The problem has become so serious in some jurisdictions that the state of NV created a committee to draft new rules governing the preservation, public access and s... of civil court records Judicial Conference of the United States, which sets policy for ... courts, adopted a n... policy that encourages ... courts to l... instances in which they s... entire c... c... files! The Conference concluded ... judges should only s... c... c... files when it is required by ... law or justified by e... c...! Any party in a proceeding can ask the records to be s..., but judges are supposed to apply the rules of the ...-... TEST to determine whether c... of records is permissible! Example: D.C. Court of Appeals ruled the right of access to v... d... process established in ...-... extended to q... filled out by ... In c... cases, courts have also found a right of access to p..., documents filed in connection with p...l motions, s... j... papers and s...t agreements Some types of court records are not generally available to the press and public! 1. ... ... Records -... ... proceedings are closed, as are most ... ... records, including transcripts and evidence -HOWEVER, when a ... ... hands down an i..., it becomes a public record even though sometimes a court may s... an i... until an a... has been made! Example: -PA Superior Court ruled in favor of the AP in its efforts to challenge the s... of court records related to the scandal surrounding PSU and Jerry Sandusky, former coach convicted on counts of rape and child sexual abuse -The records at issue related to former PSU general counsel Baldwin, who provided counsel to several individuals in the early stages of the investigation. When the state AG's office suspected those individuals had perjured themselves, it subpoenaed Baldwin, who then testified before a ... ...! -A trial court refused to u... most of the documents, making a blanket decision the public's right of access was overcome by the attorney-client privilege. On appeal, the Superior Court ordered almost all the records be u.... The court ruled most of the documents were subject to both ... ... and ...-law rights of access. In addition, the court warned the trial court for not making "i...d, sp..., p...d findings on the r... that closure is essential to preserve h... v... and is n... t... to that interest!" [Press-Enterprise Test] 2. ... Trial Records -... trials are another area where documents are routinely filed under s... with no re... versions available to the press or public Types of documents... a. Evidence Introduced In Open Court -Generally a...! Example: -UT Supreme Court said the press was entitled to see a letter that revealed the defendant's admissions. The court said most of the information in the letter was included in the defendant's b... to the court, which was a p... d... -FL Court of Appeals ruled crime scene photos, crime scene videotapes and autopsy photos that were admitted into evidence in o... c... could be inspected by members of the press to determine whether the verbal descriptions of these materials provided by a witness were accurate The court acknowledged the pictures were d... to the family and friends of the victim, but o... j... was p...t in this case But this is not always the rule! -A federal district court ruled in the trial of Moussaoui that an audiotape of the cockpit voice recorder of Flight 93 that was played for the ... should not be released to the press and public -... rights of the v... and concerns of f... m... outweighed the right of the p... to have access to the tape -A written transcript of the tape was made available -Federal court in UT ruled copies of videotapes shown at a p... competency hearing for Mitchell, who was accused and later convicted of kidnapping Smart should not be released -The judge said concerns about ensuring Mitchell had a f... t... and the p... interests of the v... outweighed the p... of access, though the tapes had been played in o... c... during the hearing! b. Court Docket Sheet -2nd Circuit, q... ... ... right to inspect these sheets (provide index to judicial proceedings and documents) c. Documents Filed in Pretrial Proceedings -9th Circuit, no need to distinguish between pretrial proceedings (which are ...) and their documents filed in regard to them d. Pre-sentencing and Post-sentencing Reports -9th Circuit, unless a judge could demonstrate a c... n... to keep such records s..., should be o... for public inspection! This isn't always the rule! -Federal court in PA s... pre-sentencing report on former state senator who pleaded guilty to charges of corruption. The court cited the defendant's right to p... and court's need for c... to support its ruling e. Plea Agreements -Written agreements between a p... and a d... in which the a... (d...) agrees to plead ..., usually to a ... c... than originally filed f. Information, Indictments, Search Warrants and Supporting Affidavits, Evidence and Other Material Related to Sentencing -Information, indictments, s.w., and supporting affidavits all relate to materials generated in c... a s... with a crime or gathering material needed for p... -Sentencing materials may go beyond these kinds of documents and include items that aren't a... as evidence in determining an individual's g.../i... Judges will sometimes d... access to these kinds of documents if they feel the p... i... will be harmed by their release! Other judges, however, focus on the b...s t... brings in these situations! Example: -FL appeals court ruled ... w... authorizing electronic tracking of the cell phones of a man accused of murdering his ex were p... o... judicial records! The government initially provided r... copies of the ... w... -The court of appeals ruled under Florida law there was no statutory exception to the public's right of access for surveillance techniques, and the state failed to show there was a c... government i... that would o... the default of t... and disclosure of the records However, the law concerning public access to ... w... is mixed! -Several courts have either said there is NO right of access or there is NO right of access prior to an official i... Example: -A federal court in NY ruled while the press could have access to letters sent to the clerk about a defendant who was about to sentenced, similar letters that were sent to the c... itself and used by the j... in the s... were off-limits -KY Supreme Court ruled a trial court could p... s... some of the a... of sexual abuse that were made against Roman Catholic priests in the diocese. The trial court said these particular allegations were a sham, immaterial, redundant, and "scandalous." The state high court said it was difficult to see how access to such a... would further the public's understanding of the judicial process and agreed the release could cause irreparable harm to the diocese Example: -Federal district court in FL ruled letters from members of the public the court received in advance of the s... of former U.S. representative Brown should be made available to the public The court ruled though such letters are not ordinarily of p... i... or made part of the p..., because of the p...'s i... in the case and the role of the letters in Brown's sentence, it was appropriate to make the letters public. -The court held it didn't seem likely the letter writers expected their letters would remain private In an unprecedented decision in 2018, the Colorado Supreme Court ruled though there was a right of access to judicial p... under both U.S. and Colorado c..., was no corresponding right of access to judicial r... including motions, transcripts and orders! -People v. Owen, CO Independent moved to un... r... related to murder defendant's motion to disqualify the prosecutor for withholding evidence in the case -A trial court denied Independent's motion to gain access; on appeal, CO Supreme Court wrote "no support in the U.S. Supreme Court jurisprudence for the contention the ... ... provides public with c... right of access to any and all c... r... in cases involving matters of p... c... -Writ of certiorari on behalf of Independent to U.S. Supreme Court, d... to h... the case!

Accessible and Inaccessible Documents The U.S. Supreme Court and lower courts have also held there is a right to access court documents! In addition, in a series of recent cases a media organization has been pressing courts to rule that access must be granted quickly or at least in a timely manner. 2018, Courthouse News Services started bringing cases against various state courts, arguing the 1A guarantees timely access to court documents. 2009, Illinois courts started using electronic filing. For about 6 years, the Cook County Clerk's Office printed out e-filed complaints for reporters to receive as soon as the complaint was received. In 2015, however, the clerk's office started posting complaints online only after administrative processing, which delayed access for eager reporters. CNS sued in federal court, arguing the new processing system denied access to almost 40% of e-filed complaints on the same day of filing. 2018, Courthouse News Service v. Brown, 7th Circuit ruled the issue was one for the state courts to decide first. "When these procedures are challenged as they have been here, the state courts should be given the first opportunity to determine precisely what level of press access is required, appropriate and feasible in a state court" the federal court wrote In 2020, however, 9th Circuit ruled there is a 1A right to timely access court documents! In a case involving Courthouse News Service, the appellate court said the press had a "qualified right of timely access" but the 1A doesn't guarantee "immediate access." A court can impose "reasonable restrictions" that result in "incidental delays" so long as they are "content-neutral, narrowly tailored and necessary to preserve the court's important interest in the fair and orderly administration of justice." In that case, CNS sued to challenge a Ventura County policy that didn't make new complaints publicly available until they were fully processed by court officials In a similar ruling in 2020, also involving CNS, a federal district judge in VA ruled the 1A requires state courts to make complaints available on the day they are filed! "members of the press and public, have historically enjoyed a tradition of court clerks making most newly filed civil complaints publicly available on the day they are filed" The case was brought by CNS in July 2018 against clerks for Prince William County. In his opinion the judge rejected the clerks' defenses and found the 1A guarantees a qualified right of access to newly filed complaints contemporaneous with their filing While a wide range of documents have been ruled presumptively open and hence potentially accessible by the press and public, sealing court records is a growing problem! Courts will agree to seal records to help litigants avoid embarrassment, to encourage them to settle disputes and for a variety of other reasons. Example: 2008, The Oklahoman newspaper reported records in more than 2,000 court cases in OK were sealed between 2003-7. These included divorce documents, wrongful death settlements and even name changes. The problem has become so serious in some jurisdictions that in 2007, the state of NV created a committee to draft new rules governing the preservation, public access and sealing of civil court records. 2011, Judicial Conference of the United States, which sets policy for federal courts, adopted a national policy that encourages federal courts to limit instances in which they seal entire civil case files! The Conference, a body comprised of senior circuit court judges, concluded federal judges should only seal civil case files when it is required by statutory law or justified by EXTRAORDINARY CIRCUMSTANCES! Any party in a proceeding can ask the records be sealed, but judges are supposed to apply the rules of the PRESS-ENTERPRISE TEST to determine whether such closure of records is permissible! Example: 2012, District of Columbia Court of Appeals ruled the right of access to voir dire process established in Press-Enterprise Co. extended to questionnaires filled out by jurors in the murder trial of the man who was convicted of killing former congressional intern Chandra Levy. This followed a similar decision to release the questionnaires of jurors administered during the trial of baseball player Barry Bonds for perjury and obstruction of justice In civil cases, courts have also found a right of access to pleadings, documents filed in connection with pretrial motions, summary judgment papers and settlement agreements. Some types of court records, however, are not generally available to the press and public! Example: a. Grand jury proceedings are closed, as are most grand jury records, including transcripts and evidence. However, when a grand jury hands down an indictment, it becomes a public record even though sometimes a court may seal an indictment until an arrest has been made! Example: 2018, Penn. Superior Court ruled in favor of the AP in its efforts to challenge the sealing of court records related to the scandal surrounding PSU and Jerry Sandusky, the former football coach convicted on multiple counts of rape and child sexual abuse. The records at issue related to former Penn State general counsel Baldwin, who provided legal counsel to several individuals in the early stages of the investigation. When the state attorney general's office suspected those individuals had perjured themselves, it subpoenaed Baldwin, who then testified before a grand jury. A trial court refused to unseal most of the documents, making a blanket decision the public's right of access was overcome by the attorney-client privilege. On appeal, the Superior Court ordered almost all the records be unsealed. The court ruled there was "no question" most of the documents were subject to both 1A and common-law rights of access. In addition, the court admonished (warned) the trial court for not making "individualized, specific, particularized findings on the record that closure is essential to preserve higher values and is narrowly tailored to that interest!" b. Patent trials are another area where documents are routinely filed under seal with no redacted versions available to the press or public. (The legal process when someone who owns the patent for a particular invention enforces their right by suing another for manufacturing or selling the invention without permission) "Many patent trials, contain mountains of sealed exhibits." Box: How an AP request for documents in a civil case against Bill Cosby led the way for a criminal case against him In 04/2018, criminal trial of Cosby ended in a guilty verdict. The case, however, might never been filed against him if it were not for a public records request made by the AP 2005, former Temple University employee Andrea Constand brought a civil suit against Cosby, alleging he drugged and sexually assaulted her In his deposition in the case, Cosby made incriminating statements, including he gave women drugs prior to sexual encounters. Excerpts of his discovery statements were filed with the court, and he moved to seal those findings. The AP was allowed to intervene in the case and requested access to the documents. The parties, however, settled in 2006 before the access issue could be decided In 2014, when more women came forward with accusations of sexual misconduct against Cosby, AP renewed its efforts to obtain the sealed documents. Cosby objected to unsealing the documents, arguing his privacy would be violated In 07/2015, the court ordered the filing from the original 2005 litigation be unsealed. The documents were immediately made available to the public via the court's electronic filing system Within days of the documents becoming available, a local district attorney reopened a criminal investigation into the allegations against Cosby After the DA charged Cosby, the unsealed deposition testimony was used as evidence against him in the criminal trial Though in 2021 the Penn. Supreme Court ruled Cosby's trial violated the terms of a deal he made with a prosecutor years earlier and ordered Cosby's release, the case is an example how a record's request can be the backbone of an important series of stories and how these stories can lead to important reactions from the government Evidence Introduced in Open Court Evidence that is introduced in open court is generally accessible! Example: 2011, Utah Supreme Court said the press was entitled to see a letter that revealed the criminal defendant's admissions. An inmate whose cell was adjacent to the defendant's cell sent the letter to the court. The court said most of the information in the letter was included in the defendant's brief to the court, which was a public document The Florida Court of Appeals ruled in 2005 crime scene photos, crime scene videotapes and autopsy photos that were admitted into evidence in open court could be inspected by members of the press to determine whether the verbal descriptions of these materials provided by a witness were accurate. The court acknowledged the pictures were distressing to the family and friends of the victim, but open justice was paramount in this case. But this is not always the rule! A federal district court ruled in the trial of Moussaoui that an audiotape of the cockpit voice recorder of Flight 93 (crashed in Penn. on 9/11) that was played for the jury should not be released to the press and public. Privacy rights of the victims and concerns of family members outweighed the right of the public to have access to the tape. A written transcript of the tape was made available, however And a federal court in Utah ruled in 2010 copies of videotapes shown at a public competency hearing for Mitchell, who was accused and later convicted of kidnapping Smart in 2002 and holding her for nine months, should not be released. The judge said concerns about ensuring Mitchell had a fair trial and the privacy interests of the victim outweighed the presumption of access, though the tapes had been played in open court during the hearing! Court Docket Sheet 2nd Circuit ruled in 2004 there is a qualified 1A right to inspect these sheets that provide an index to judicial proceedings and documents Documents Filed in Pretrial Proceedings 9th Circuit ruled pretrial proceedings are open and "no reason to distinguish between pretrial proceedings and the documents filed in regard to them" Presentencing and Postsentencing Reports 9th Circuit, unless a judge could demonstrate a compelling need to keep such records sealed, they should be open for public inspection! But this isn't always the rule! 2001, federal court in Penn. sealed a presentencing report on a former state senator who pleaded guilty to charges of corruption. The court cited the defendant's right to privacy and the court's need for confidentiality to support its ruling Plea Agreements These are written agreements between a prosecutor and defendant in which the accused agrees to plead guilty, usually to a lesser charge than originally filed Information [a formal accusation], Indictments [a formal charge of a serious crime], Search Warrants and Supporting Affidavits, Evidence and Other Material Related to Sentencing The first four items (information, indictments, search warrants, and supporting affidavits) all relate to materials generated in charging a suspect with a crime or gathering material needed for prosecution. Sentencing materials may go beyond these kinds of documents and include items that aren't admissible as evidence in determining an individual's guilt or innocence. Judges will sometimes deny access to these kinds of documents if they feel the public interest will be harmed by their release! Other judges, however, focus on the benefits transparency brings in these situations! Example: 2018, Florida appeals court ruled search warrants authorizing electronic tracking of the cell phones of Wooten, a man accused of murdering his ex-girlfriend, were presumptively open judicial records! The government initially provided redacted copies of the search warrants. The court of appeals ruled under Florida law there was no statutory exception to the public's right of access for surveillance techniques, and the state failed to show there was a compelling government interest that would override the default of transparency and disclosure of the records. However, the law concerning public access to search warrants is mixed! Example: Several courts have either said there is NO right of access or there is NO right of access prior to an official indictment Example: A federal court in NY ruled while the press could have access to letters sent to the clerk of courts about a defendant who was about to sentenced, similar letters that were sent to the court itself and used by the judge in the sentencing were off-limits. The judge ruled the people who sent those letters had an exception of privacy about their comments, and there was a need for uninhibited commentary on the sentencing issue, something that might be deterred if citizens thought their ideas and opinions would be made public. The Kentucky Supreme Court ruled a trial court could permanently seal some of the allegations of sexual abuse that were made against Roman Catholic priests in the diocese. The trial court said these particular allegations were a sham, immaterial, redundant, and "scandalous." The state high court said it was difficult to see how access to such allegations would further the public's understanding of the judicial process and agreed the release could cause irreparable harm to the diocese Example: 2017, federal district court in Florida ruled letters from members of the public the court received in advance of the sentencing of former U.S. representative Brown should be made available to the public. The court ruled though such letters are not ordinarily of public interest or made part of the public, because of the public's interest in the case and the role of the letters in Brown's sentence, it was appropriate to make the letters public. "The integrity of our judicial process is secured in large measure by the public's long-standing right of access to that process," the court. In addition, the court held it didn't seem likely the letter writers expected their letters would remain private. Box: No right of access to judicial records? 2018, in an unprecedented decision, CO Supreme Court ruled though there was a right of access to judicial proceedings under both the U.S. Constitution and the CO Constitution, there was no corresponding right of access to judicial records, including motions, transcripts, and orders. In People v. Owen, the Colorado Independent moved to unseal records related to a murder defendant's motion to disqualify the prosecutor for withholding evidence in the case. The records included motion papers, a hearing manuscript and a court order. A trial court denied the CO Independent's motion to gain access to the records. On appeal, the CO Supreme Court wrote "there was on support in U.S. Supreme Court jurisprudence for the contention the 1A provides the public with a constitutional right of access to any and all court records in cases involving matters of public concern" Longtime media lawyer Zansberg filed a petition of certiorari with the U.S. Supreme Court on behalf of the Colorado Independent. Though Z argued the CO Supreme Court was "the only court in the nation that has categorically rejected a 1A right to [judicial] records" he also noted all cert petitions to the U.S. Supreme Court are long shots. "Any case that seeks U.S. Supreme Court review faces extremely uphill odds" Despite Z's argument the decision went against all others, the U.S. Supreme Court declined to hear the case

Advertising and Trade Relations Minor differences exist among the states - especially among states with ... - but a general guideline: Advertising or trade purposes are ... uses; someone makes ... from the use! Examples: -Use of a person's name or photograph in an ... on TV, radio, in newspapers, in magazines, on the Internet, on posters, on billboards -Display a person's photo in the window of a ...'s ... to show potential customers the quality of work in the ... -A ... falsely suggesting an individual eats the cereal or drives the automobile in question -Use of an individual's name or likeness in a ... ... or other ... message on a Web site -Use of someone's likeness or identity in a c... e... v... like a feature film, TV situation comedy, novel, etc. Bullard v. MRA Holding, LLC. -Advertisement example -Use of plaintiff's photo on a box cover for 'Girls Gone Wild' video constituted misappropriation of her likeness. 13 years earlier, exposed her --- to two unknown men in a parking lot. Aware the men taped her, but did not know the future use they may make from the video. Video sold to MRA Holding, still photo taken from the video and put on the box cover -Ruling for Bullard, Georgia Supreme Court, "can be seen e... the video through the use of her image" The court rejected the notion her consent to be taped amounted to consent for MRA Holding to use her image on the cover - "The unknown men never indicated to Bullard who they ... for, had any connection with or had any ... of giving her image to MRA Holding for purpose of selling 'College Girls Gone Wild' videos. Nor did Bullard have any ... with MRA to give them permission to use her image for that purpose." -Also, ... cannot typically consent without additional permission from a ... or ... (already found for Bullard though) C... e... v... pose the most complicated legal problems because of the varied circumstances involved. And courts often have difficulty sorting through these circumstances to arrive at ... decisions! -What if a producer just happened to pick the name of a real person for use in a TV program? The plaintiff's ... name or ... was never associated with the show. The similarity of the plaintiff's ... name and the fictional character did not amount to illegal appropriation (New York court) -Florida Supreme Court: state's commercial misappropriation statute did not apply to a m... p... or any other use that does not 'directly' ... a .../... (The fact that the m... p... was created ... ... didn't warrant defining the term 'c... purpose' in the statute to include a m... p...) (using names without permission) -Manhattan Appellate Division, Grand Theft Auto video game did not fall under New York's statutory definitions of '...' and '...' Caution should be exercised in such cases as a cause of action for ...-... privacy might be generated because the events in the film have been f... in some manner! -Public relations professionals need to be weary over protection of content in news releases (often published on organization's web site or social media) -Celebrities have also sued for being featured on a brand's social media feed Exceptions... 1. News and Public Interest Exception Consider the argument: A newspaper runs a photo of John Smith on the front page about his car rolled over several times during a high speed police pursuit. Smith sues for IOP, arguing his picture on the front page of the paper attracted readers to the paper, resulted in the sale of newspapers and therefore was used for commercial or trade purposes -More than 100 years ago, New York courts ... this argument, ruling the law was intended to punish ... use not the d... of ...! Since then, other courts have consistently ... this claim! -The U.S. Supreme Court has ruled just because newspapers and books and magazines are sold f... ... doesn't deny them the protection of liberty of ... But asking different judges what is n... or what constitutes a matter of ... ... could result in ... answers! -Reality TV shows blur line between legitimate ... and ... ("Trauma: Life in the ER" several individuals admitted to an emergency room at hospital videotaped for TV program, the court ruled the program to be ...!) -Dismiss misappropriation of likeness over use of likeness of Heller in "Straight Outta Compton" movie - the ... ... defense allowed film producers to depict matters in the ... arena without fear of ...! The subject matter of the film involved a matter of ... ... (little doubt rap group had influence on popular culture both domestically and internationally, Heller's role in the group's rise to stardom was a matter of ... ... and the film's use of his likeness was protected by the ... ...) -New York court - 'although the statute does not apply to reports of ... events or matters of ... ..., this exception does not apply to knowing fictionalization! But New York Appellate Division reversed court's denial of summary judgment to Lifetime Network, dismissed complaint - New York's right-to-publicity law could not be applied to ... events and matters of ... ... New York law aligned with many other jurisdictions that appropriation and right of publicity claims cannot be applied to 'docudramas' under ... ... -Florida court, the fact a publication may have used the photos primarily to enhance the v... of the magazine by increasing its c... did not mean the photos were used for purposes of ... (the article was ...) The blurring between ... and ... is one issue, but an even greater problem in privacy law is the convergence of ... and ...! -Close association between ... and the ... content of publications or TV programs raises real questions on whether a particular use should be considered an exemption to the general prohibition against ... use -Dustin Hoffman sued Los Angeles magazine for using photo in fashion feature. Using computer image tech, magazine combined still photos of actors with photos of contemporary models wearing latest fashions by designers who were advertisers in the magazine. But the photo feature wasn't an ...; it was ... copy! Hoffman's picture was taken from publicity still to publicize past film. Hoffman's face and body attached to body of a female model and the new photo "Hoffman isn't a drag in a butter-colored gown by Richard Tyler and Ralph Lauren heels" -Trial court ruled the use of the photo was for ... purposes, but 9th Circuit disagreed! Viewing the context of the article as a whole is a combination of fashion photography, humor, and ... content on classic films and famous actors. Any ... aspects are 'inextricably entwined' with e... elements and cannot be separated from the fully protected whole Other Exceptions The right to publish or broadcast an individual's name or likeness for news and information purposes is a broad exception to the appropriation rule. There are other exceptions too, found by other courts but not all courts will view the same actions as ... to the appropriation rule 2. Doctrine of Incidental Use -Recognized in many jurisdictions and permits a f... or ... use of an individual's name or likeness in some kinds of ... creations "Penalizing every un... use, no matter how insignificant and fleeting, of a person's name or likeness would impose undue burdens on expressive activity." -Amazon showed cover of book selling online, mode who posed for the cover photo of the book sued for appropriation. 9th Circuit ruled for online seller, merely displayed the cover in an effort to replicate the experience of a physical book store. "Amazon's use of book cover images is not an e... or ... of any product/service, but is merely ... to the business of Internet book sales." -3-4 second clip in documentary "Super-Size Me," doesn't say anything in scene that discusses nutritional content of McDonald's offerings and availability of this information to the public (her appearance was ...) -BUT the use of a legendary pilot's name in a press release touting information of a new mobile phone service was not merely ...! 3. Booth Rule -Closely related to incidental use doctrine; some courts refer to it as part of this doctrine -Rule provides fairly broad protection to mass media in most states if an individual's name or likeness is used in ... for a particular ... m... - the use of a person's name or likeness in an ... for a magazine or newspaper or a TV program is usually not regarded as an appropriation if the photograph or name has been or will be a part of the m...'s ... or ... content! Academy Award-winning actress Booth, photographed in Jamaica, photo published in feature story for Holiday magazine - the magazine then used the same photo to ... the magazine itself! Full-page ad told readers the picture displayed was typical of material appearing in Holiday and urged people to advertise in the periodical or subscribe -Booth didn't object to her photo in the feature story, only to its use in the subsequent ... -The courts refused to call the use an IOP - New York Supreme Court ruled the maintenance of freedom of expression depends in no small part on the ... support of the press by advertisers and subscribers (and to win such support a publication/station must be able to ... itself!) -Since the picture was first used in an ... story, its subsequent use in a ... for the magazine was only ... to its original use and merely to show the quality and content of the magazine It was originally believed the Booth rule protected only the r.../r... of material previous used in the m... - some courts still follow this rule, but others enunciate a broader protection! -U.S. District Court ruled it was permissible for a newspaper or magazine to use previously published material in a ... ... for the publication - a name or likeness that appeared in a newspaper story can be r... in a ... ... for that newspaper! -Condé Nast sued over video posted on Vogue's web site. April 2014 issue featured article on relationship between Kardashian and West. Video contained behind the scenes footage of the article, and edited version of West's song which included lead vocals of Spicer. Heard at least four times in video, Spicer sued Condé Nast (knowingly used his voice on its Web site for ... purposes without his consent) -The court ruled the source was advertising its o... ... and ... and thus protected! No one knows how far the courts will go in extending the Booth rule, but the tendency seems to ... the protection than ... it! Of course, the use of a name or photo to promote a medium cannot be ... or even ... e... of the medium -Cher won lawsuit against Forum magazine after it used her photo to promote an edition of the publication. The ads clearly implied she ... Forum, which was not true. That issue did contain an interview with Cher, but court ruled the ads went far beyond establishing the ... content and ... of the publication for potential audiences The use of an individual's name or likeness in a ... advertisement is not regarded as appropriation -A ... ad that says 'Vote for Jones, not Smith.' Smith has no legal right to sue for appropriation -The use of an individual's name or likeness in an ...-oriented ad like "Save the Whales" or "Stop Racism" would also not sustain an appropriation lawsuit -Example: Use of two plaintiff's pictures in ad attacking American Association of Retired Persons' support of gay marriage (not appropriation, not a ... use but an issue of p... ...) What about the use of a name or likeness in an ad or promotion for a ...-... organization in brochures or pamphlets to stimulate ... to further their community work? -6th Circuit upheld small damage award to child whose picture was used without permission in direct mail solicitation of a Kentucky religious order It's not clear how liable ...-for-... organizations will be, the simplest and best solution in these situations is to get ... from people before you use their likeness for f... opportunities!

Advertising and Trade Relations What are advertising and trade purposes? Minor differences exist among the states - especially among states with statutes - a general guideline can be set down: Advertising or trade purposes are commercial uses; someone makes money from the use. Some examples: 1. Use of a person's name or photograph in an advertisement on TV, on radio, in newspapers, in magazines, on the Internet, on posters, on billboards, etc. 2. Display of a person's photograph in the window of a photographer's shop to show potential customers the quality of work in the studio. 3. A testimonial falsely suggesting that an individual eats the cereal or drives the automobile in question. 4. Use of an individual's name or likeness in a banner ad or other commercial message on a website. 5. The use of someone's likeness or identity in a commercial entertainment vehicle like a feature film, television situation comedy, novel, etc. 2013 decision by Georgia Supreme Court in Bullard v. MRA Holding, LLC illustrates the first of these categories. Case centered on Bullard, claimed use of her photo on a box cover for a 'Girl Gone Wild' video constituted misappropriation of her likeness. In 2000, when Bullard just 14, exposed her breasts during spring break to two unknown men in a parking lot in Panama City, Florida. Although aware the men were taping her, Bullard didn't know what future use they might make of the video. Ultimately, video sold to MRA Holding, which markets 'Girls Gone Wild.' A still photo of Bullard flashing was taken from the video and put on the box cover. MRA Holding blocked out her breasts and superimposed the inscription "Get Educated!" Image also appeared in TV commercials and Internet ads. In ruling for Bullard, Georgia's high court wrote 'under the facts of this case, Bullard can be seen as endorsing the 'College Girls Gone Wild' video through the use of her image. The court rejected the notion her consent to be videotaped amounted to consent for MRA Holding to use her image on the cover. "The men whom Bullard exposed her breasts never indicated to B they worked for, had any connection with, or had any intention of giving B's image to MRA for the purpose of selling College Girls Gone Wild videos. Nor did B have any contact with MRA to give MRA permission to use her image for that purpose. Is there another problem with lack of consent in this case? Minors typically CANNOT consent to the use of their names or likenesses without additional permission from a parent or guardian. Having already found for B, the court declined to reach that issue. Michael Jordan sued Chicago supermarket chain Jewel-Osco, claiming the commercial use of his identity in an ad was without authorization. Suit stemmed from 2009 Sports Illustrated publication commemorating Jordan's induction into the Basketball Hall of Fame. Ad stated 'Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was just around the corner for so many years' and included the Jewel logo and slogan 'Good things are just around the corner' 7th Circuit Court ruled the commercial purpose of the ad was readily apparent because it was used to promote the goodwill of and enhance the Jewel brand The kinds of uses outlined in Example 5 (commercial entertainment vehicles) pose the most complicated legal problems because of the varied circumstances involved. And courts often have difficulty sorting through these circumstances to arrive at consistent decisions. What if a producer just happens to pick the name of a real person for use in a television program? Michael Costanza sued Seinfeld and others for the use of the name Costanza in the successful situation comedy. But the fictional character was named George and the plaintiff's full name or photo was never associated with the show. The similarity of the plaintiff's last name and the fictional character did not amount to an illegal appropriation, New York court ruled. In 2005, the Florida Supreme Court ruled the state's commercial misappropriation statute didn't apply to a motion picture or any other use that does not 'directly' promote a product or service. Children of two crew members of the Andrea Gail, the fishing boat that was lost during The Perfect Storm sued Time Warner for using the names of the men in the feature film of the same name without permission. The fact the motion picture was created for profit didn't warrant defining the term 'commercial purpose' in the statute to include a motion picture, the court said. The Manhattan Appellate Division ruled GTA V didn't fall under the statutory definitions of 'advertising' or 'trade.' But caution should be exercised in such cases as a cause of action for false-light privacy might be generated because the events in the film have been fictionalized in some manner. Public relations professionals have long assumed because news releases are designed to be picked up by the media, content of news releases would be considered 'news.' This assumption needs to be questioned, now that news releases are frequently published on an organization's web site or in social media. In addition, in recent years celebrities have sued for being featured on a brand's Twitter feed. Katherine Heigl sued about a Tweet by Duane Reade drugstore that featured a picture of the actress coming out of the store. News and Public Interest Exception What about this argument? A newspaper runs a photo of John Smith on the front page about his car rolled over several times during a high speed police pursuit. Smith sues for IOP (invasion of privacy), arguing his picture on the front page of the paper attracted readers to the paper, resulted in the sale of newspapers and therefore was used for commercial or trade purposes. More than a century ago New York courts first rejected this argument, ruling the law was intended to punish commercial use, not the dissemination of information. And since that ruling other courts have consistently rejected this claim. The US Supreme Court has ruled the fact that newspapers and books and magazines are sold for profit doesn't deny them the protection of liberty of expression. Asking different judges what is newsworthy or what constitutes a matter of public interest could result in different answers. Reality TV shows blur the line between legitimate news and entertainment. And judges become confused. A NJ appellate judge noted this problem, "Neither feasible or desirable to make a distinction between news for information and news for entertainment in determining the extent to which the publication is privileged" Several individuals who had been admitted to an emergency room at a hospital were videotaped for the TV program "Trauma: Life in the ER" which was telecast on The Learning Channel. The court ruled the program to be news. In 2016, a federal court dismissed misappropriation of likeness claim stemming from the movie 'Straight Outta Compton' Heller, highly successful music executive, sued over the use of his likeness in a movie about the rise of the rap group NWA. Heller also sued for defamation and false-light IOP. On the misappropriation claim, judge ruled the public interest defense allowed 'film producers to depict matters in the public arena without fear of liability' Judge wrote the subject matter of the film - Heller's tumultuous relationship with NWA - involved a matter of public interest. The judge held because there was little doubt that NWA has had an influence on popular culture both domestically and internationally, Heller's role in the group's rise to stardom was certainly a matter of public interest and the film's use of his likeness was protected by the 1A. 2017, New York court ruled Lifetime Entertainment might have to pay a convicted murderer for violating his right of publicity by using his name and likeness without permission to tell the story of his crime. 2006, Porco was convicted of the murder of his father and attempted murder of his mother. Porco attacked his parents with an axe while they slept. In 2013, Lifetime produced and aired docudrama "Romeo Killer: The Christopher Porco Story" Porco sued under NY's right-to-publicity statutory law. Lifetime moved to dismiss the case. Judge ruled although the statute doesn't apply to 'reports of newsworthy events or matters of public interest' this exception didn't apply to a 'KNOWING FICTIONALIZATION' 2021, however, in a unanimous decision, New York's Appellate Division, Third Department, reversed the court's denial of summary judgment to Lifetime Network, and dismissed the complaint. The court ruled New York's right-to-publicity law couldn't be applied to thoughts, ideas, newsworthy events and matters of public interest. Aligned New York law with many other jurisdictions that have held appropriation and right of publicity claims cannot be applied to so-called 'docudramas' under the 1A. In another case, 14-year-old Florida girl posed for series of pictures she believed would appear in Young and Modern, a magazine aimed at teenage girls. Photos appeared in a 1995 edition of the publication but not exactly in the context she expected. They illustrated a regularly published column called Love Crisis. In this edition, a 14-year-old letter writer told columnist she had gotten drunk at a party and had sex with three different boys, what should I do? Don't do it again the columnist replied and be sure to get tested for both STDs and pregnancy. Column was headlined 'I got trashed and had sex with three guys' and three photos of the plaintiff were used to illustrate the letter. New York Court of Appeals disagreed with plaintiff claims they were published for commercial purposes. The article was newsworthy, the court said. It was not an advertisement in disguise. The fact a publication may have used the photos primarily to enhance the value of the magazine by increasing its circulation didn't mean the photos were used for purposes of trade. The blurring between news and entertainment is one issue. An even greater problem in privacy law is the convergence of information and marketing. The close association between advertising and the editorial content of publications or TV programs raises real questions on whether a particular use should be considered an exemption to the general prohibition against a commercial use. Tension between advertising and news editorial content: Actor Dustin Hoffman sued Los Angeles magazine in 1999 for using his photo in a fashion feature, Grand Illusions. Using computer image tech, magazine combined still photo of actors (both living and dead) with photos of contemporary models wearing the latest fashions by many designers who were advertisers in the magazine. But the photo feature wasn't an advertisement; it was editorial copy. Hoffman's picture was taken from a publicity still used to publicize the film Tootsie, in which actor is made up as woman. Hoffman's face and head attached to the body of a female model and the new photo appeared over the caption "Dustin Hoffman isn't a drag in a butter-colored gown by Richard Tyler and Ralph Lauren heels" Trial court ruled the use of the photo was for commercial purposes, but the 9th Circuit disagreed. "Viewed in context the article as a whole is a combination of fashion photography, humor, and visual and verbal editorial content on classic films and famous actors. Any commercial aspects are 'inextricably entwined' with expressive elements and cannot be separated out from the 'fully protected whole' Other Exceptions The right to publish or broadcast an individual's name or likeness for news and information purposes is a broad exception to the appropriation rule. Other courts have found other exceptions too, but this is where the law of privacy gets dicey. Not all courts view the same actions as exceptions to the appropriation rule. The doctrine of incidental use, for example, is recognized in many jurisdictions and permits a fleeting or brief use of an individual's name or likeness in some kinds of commercial creations. "The doctrine of incidental use was developed to address concerns that penalizing every unauthorized use, no matter how insignificant or fleeting, of a person's name or likeness would impose undue burdens on expressive activity" When Amazon showed the cover of a book it was selling online, the model who had posed for the cover photo sued for appropriation. 9th Circuit ruled the online seller merely displayed the book cover in an effort to replicate the experience of a physical book store. "It is clear Amazon's use of book cover images isn't an endorsement or promotion of any product or service, but is merely incidental to the business of Internet book sales" Plaintiff Candelaria appeared for 3-4 seconds in documentary film "Super-Size Me" an attack on fast food eating habits. She doesn't say anything in a scene that discusses the nutritional content of McDonald's offerings and the availability of this information to the public. A court ruled her appearance was incidental. But the use of legendary pilot Yeager's name in a press release touting information of a new mobile photo service by Cingular might not be merely incidental, federal court in Ca ruled, rejecting a motion to dismiss. The press release said, "Nearly 60 years ago the legendary test pilot Yeager broke the sound barrier and achieved MACH 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and Mach 2 mobile command centers" Booth Rule Closely related to the incidental use doctrine; some courts refer to it as part of this doctrine. The rule provides fairly broad protection to mass media in most states if an individual's name or likeness is used in advertising for a particular information medium. In other words, the use of a person's name or likeness in an advertisement for a magazine or a newspaper or a television program is usually not regarded as an appropriation if the photograph or name has been or will be a part of the medium's news or information content. Controversy that sparked this rule involved Academy Award-winning actress Shirley Booth. Photographed in Jamaica, the picture was published in a feature story in Holiday, popular travel magazine. Holiday then used the same photo to advertise the magazine itself. The full-page ad told readers the picture was typical of the material appearing in Holiday magazine and urged people to advertise in the periodical or subscribe to Holiday. Booth didn't object to her photo in the feature story, only to its use in the subsequent advertisement. The courts refused to call the use an IOP. The New York Supreme Court ruled the maintenance of freedom of expression depends in no small part on the economic support of the press by advertisers and subscribers. And to win such support a publication or b-cast station must be able to promote itself. Since the picture was first used in an information story, its subsequent use in a promotion for the magazine was really only incidental to its original use and was merely to show the quality and content of the magazine. The picture was not used to sell spaghetti or used cars. Hence the use didn't constitute an IOP. Originally it was believed the Booth rule protected only the republication or rebroadcast of material previously used in the medium. Some courts still follow this rule, whereas others have enunciated a broader protection. Example: US District Court ruled it was permissible for the newspaper or magazine to use previously published material in a TV ad for the publication. A name or likeness that appeared in a newspaper story can be republished in a TV advertisement for that newspaper. 2014, publisher Condé Nast sued over video posted on Vogue's web site. Vogue's April 2014 issue featured an article about the relationship between reality star Kardashian and rapper West. The video contained behind the scenes footage of the article, an edited version of West's song was also used as the background music for the video. The 'hook' in the song contained the lead vocals of Ricky Spicer, singer in 70s group. Spicer is heard at least four times throughout the song, and his voice was used substantially throughout the video, compromising about 44% of the vocals. Spicer sued Condé Nast, the publisher of Vogue, arguing the company knowingly used his voice on its web site for advertising purposes and for purposes of trade and commercial benefits, without his authorization or consent. The court ruled, however, even if the video was an advertisement in disguise, the use was a media source advertising its own goods and thus protected. No one yet knows just how far the courts will go in extending the Booth rule. The tendency seems to be to expand the protection than restrict it. Clearly the use of a name or photo to promote a medium cannot be explicit or even implied endorsement of the medium. Cher won lawsuit against Forum magazine after it used her photo to promote an edition of the publication. The ads clearly implied the actress-singer endorsed Forum, which wasn't true. That issue did contain an interview with Cher, but the court ruled the ads went far beyond establishing the news content and quality of the publication for potential audiences. Finally, the use of an individual's name or likeness in a political ad isn't regarded as appropriation. A campaign advertisement that says 'Vote for Jones, not Smith' wouldn't give Smith a legal right to sue for appropriation. The use of an individual's name or likeness in an issue-oriented ad such as "Save the Whales" or "Stop Racism" would likewise not sustain an appropriation lawsuit. Federal court in 2006, the use of two plaintiff's pictures in an ad attacking the American Association of Retired Persons' supposed support of gay marriage wasn't an appropriation because it wasn't a commercial use, and addressed an issue of public concern. What about the use of a name or likeness in an ad or promotion for a nonprofit organization in brochures or pamphlets to stimulate donations to further their community work? 6th Circuit upheld small damage award to a child whose picture was used without permission in a direct mail solicitation by a KY religious order. The Little Sisters of the Assumption Order included the photo with a letter sent to 125k homes asking for donations for the poor. The appellate court affirmed lower court award of $100 in damages for appropriation. It's not clear how liable not-for-profit organizations would be, the simplest and best solution in these situations is to get consent from people before you use their likeness for fundraising opportunities.

Legislative and Executive Protection of News Sources All states except ... provided some form of legally recognized protection in varying degrees and forms for journalists seeking to provide confidentiality of sources and/or information! -... states and D.C. had ... laws protecting reporters, while other states recognized a j... created p... rooted in one or more of three sources - the ... ..., s... c..., or the ... law! A state with a s... s... law may also recognize a j... created p..., so a reporter in a given state may have TWO possible avenues of protection -There IS NO ... s... law to protect reporters who are hauled before ... courts and ... g... ..., despite multiple efforts spanning nearly 20 years to adopt one. Latest attempt is the PRESS Act (Protect Reporters from Excessive State Suppression Act) which was introduced to Congress in 06/2021 (not signed) Shield Laws 1896 - ... becomes the first state to grant journalists a l... p... to refuse to testify in legal proceedings 2019 - ... ... became the most recent state with a shield law Without a shield law: ID, WY, IA, MO, MS, VA, NH, MA, HI Shield laws are s..., adopted by s... l... bodies except in the case of Utah (state's high court in 2008 approved and adopted reporter's shield rule governing all court proceedings in the state) Often s... v... from state to state in both the S... of protection and the D... used in these shield laws (example: no u... d... across the states of who constitutes a j... or r... under these laws) These laws outline the ...'s p... that has been established by the state The statutes generally establish: 1. ... can use the privilege (Who is a r...?) 2. The k... of ... the privilege protects (c... and/or n...; s... only or s... and/or i...) 3. Any q... that might accrue (the p... is w... through v... d... of other parts of material, instances when d... is mandated) Example: Alabama shield law "No person engaged in, connected with, or employed on any newspaper, radio broadcasting station or TV station, while engaged in a n... g... capacity shall be compelled to d..., in any l... p... or t..., before any c... or before a g... ... in any c..., before the presiding officers of any tribunal or his agent or agents, or before any committee of the legislature, or elsewhere, the s... of any information procured or obtained by him and published in the newspaper, broadcast by any broadcasting station, or televised by any TV station on which he is engaged, connected with or employed" The p... l... of state shield laws is very important in determining both w... and w... they will and will not protect! Price v. Time, Inc. (2005) -11th Circuit held that Alabama's shield law did not apply to the ... Sports Illustrated. Engaging in the process of s... c..., the appellate court held that the Alabama statute's phrase "newspaper, radio broadcasting station or television station" DID NOT COVER ... like Sports Illustrated. The appellate court followed the plain meaning rule - it gave the statutory words their o... m... and did not impart its o... v... on the legislative language. The 11th Circuit wrote "it seems to us plain and apparent that in common usage 'newspapers' does not mean 'newspaper and ...'" Example: Who is included in a state shield law for protection? Shield laws v... from state to state in outlining who they protect - and judges often asked to determine a law's boundaries! -Federal magistrate judge ruled Florida's shield law protected the online news outlet Buzzfeed from having to reveal the source of the so-called Steele dossier, which the site published. Was a collection of memos prepared by former British spy Steele that included a variety of allegations about President Trump and Russian interference in the 2016 presidential election -Gubarev, an alleged Russian hacker, sued Buzzfeed for defamation, claiming that false statements in the dossier that referenced him and his web-hosting company injured his reputation. Gubarev filed suit in Florida, where a subsidiary of his company is based. He requested documents from Buzzfeed as part of the lawsuit, but Buzzfeed asserted the ...'s p..., claiming the requested documents would identify the source who provided the dossier -Florida's shield law applies to "professional journalists" defined as a "person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or TV station, network, or news magazine." -Gubarev argued the FL shield law didn't apply to Buzzfeed because the news outlet was not a "newspaper, news journal, news agency, press association, wire service, radio or TV station, network, or news magazine" -The judge flatly rejected that argument. "There is nothing in the statute that limits the privilege to t... p... m...! Because Buzzfeed w... s... and p... n... a... on its website, it qualifies as a 'n... a...,' 'n... j...' or 'n... m...'" Magistrate Judge wrote. -Because the shield law applied to Buzzfeed, the next question for the judge was whether the law protected Buzzfeed from revealing its source. Florida's shield law provides journalists with a q... p.... A party seeking disclosure of information from a reporter must make a clear and specific showing that (1) the information is r... and m... to un... i... that have been raised in the proceeding for which the information is sought, (2) the information cannot be obtained from a... s... and (3) a c... i... exists for r... d... of the information. -Gubarev had not made a "clear and specific showing the identity of the source cannot be obtained through a... s..." and thus denied the request to force Buzzfeed to disclose who provided it the dossier Are individuals who post factual information and opinions on o... m... b... journalists for purposes of state shield laws? -New Jersey appellate court ruled in Too Much Media, LLC v. Hale that New Jersey's shield law ... protect a woman who posted messages on a site called Oprano.com, a forum where members read and post thoughts on m... b... regarding various subjects related to the adult entertainment industry, with the comments available for public viewing -... the woman's contention that she should fall within these definitions, the appellate court reasoned "it is not enough to simply s...-p... oneself a j...! The only evidence in support of defendant's claim she is a newsperson is her own s...-... ch... and t... as to her i... in gathering information, which the trial court found not credible" -NJ Supreme Court affirmed decision that NJ's shield law did not apply in this case, "we do not find that o... m... b... are similar to the types of n... e... listed in the statute, and do not believe the Legislature intended to provide an a... p... in defamation cases to people who post comments on m... b..." NJ's high court added "neither writing a l... to the e... nor posting a comment on an o... m... b... establishes the connection with 'news media' required by the statute" On the other hand, the NJ Supreme Court made it clear that "maintaining particular c... or adhering to p... s... of journalism - like disclosing COIs or note taking - is NOT required by the Shield Law" Example: -But a trial court judge held that NJ's shield law did protect Renna, the primary writer and editor of a b... called County Watchers. The b... reported on alleged waste, corruption and mismanagement in Union County. At issue in the case were b... postings about the alleged misuse of county-owned power generators by Union County employees during Hurricane Sandy. A local prosecutor subpoenaed R to testify before a grand jury about the alleged improper use of the generators, but R wanted to quash the subpoena on grounds she was protected by NJ's shield law To resolve the case, Judge Cassidy applied the NJ Supreme Court's ruling from Too Much Media case. In ruling in favor of R, Judge Cassidy observed "R does in fact author posts about alleged occurrences and issues related to Union County governance and politics not covered by other media sources." The fact that the q... of her w... was "not akin to that of a p... n... r..." and the fact R's posts sometimes devolved into "ad hominem attacks" on Union County employees DID NOT eliminate protection under the NJ shield law. What was important was R re... po... s... on county meetings, ordinances and budgets. She followed n...-... methods commonly employed by what Judge Cassidy called "t... n... m... e..." such as talking to sources, asking questions at county meetings and using NJ's open records law to obtain documents. Judge Cassidy granted R's motion to quash the subpoena and to protect her under NJ's shield law -Nevada Supreme Court concluded "a b... should not be disqualified" from the shield law protections offered in that state "merely on the basis the b... is d..., than appearing in a p... form" A lower court judge in the state then relied on that decision to rule a b... that "regularly and consistently published current-event-articles" written by a b... who "obtained, gathered, received, procured, and processed information" was the "f... e... of a t... p... n... and therefore is a n..." under the state's shield law Shield laws sometimes suffer from discrepancies/problems! 1. Few of the laws give a protection that e..., or is even e... to, that given by the c... p...! 2. The laws in most of the states are s... q... (l...)! Example: Laws in AK, LA, NM, ND can be overcome by a mere judicial determination that justice or public policy requires the privilege to yield to some other interest 3. In some states the reporter w... the p... upon d... of any portion of the c... matter! 4. In other states the shield law will not apply unless there was an understanding of c... between the r... and s...! 5. State shield laws often exclude f... w..., b... a... and c... T... p..., as well as b...! Example: FL's shield law applies only to "professional journalists" and it excluded from this definition "b... a...," but it does include "i... co..." which means it covers f..., provided they are regularly engaging in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood" 6. Shield laws rarely cover what a reporter w..., only what a reporter has been t... or g...! Example: An appellate court in MD held the state's shield law didn't protect reporters from complying with administrative subpoenas seeking their testimony at police department administrative hearings when those reporters p... o... and w... the relevant event about which their testimony was sought 7. Many shield laws have l... that allow subpoenas of t... p... r...! Reporters Committee for Freedom of the Press reports the laws do not amount for journalists' e... c... through p..., c... or other t... These l... could allow the government to evade shield laws by instead subpoenaing p... c... or e... s... to gather journalists' records - c... p... records, for instance, that would document phone numbers and dates of a journalists' communications ... became first state to amend its law to shield journalists' e... c... from government investigations. The amended law bars the government from requesting disclosure "of privileged news media information from services that transmit e... c..." Shield laws in other states such as CA, CT, Maine, and WA require government bodies to n... the media of t...-p... s... While those laws do not provide the absolute protection of ...'s law, requiring n... at least gives journalists the opportunity to fight t...-p... subpoenas in court The perfect shield law would likely be preferable to the ... ... privilege, but...? Even in those states that have a shield law, reporters frequently end up relying on the c... p...!

Shield Laws 1896 - Maryland became the first state to grant journalists a limited privilege to refuse to testify in legal proceedings. 2019 - South Dakota became the 41st and most recent state with a shield law. D.C. also has such a law, but there is no federal shield law! Without shield laws: Idaho, Wyoming, Iowa, Missouri, Mississippi, Virginia, New Hampshire, Massachusetts, Hawaii Shield laws are statutes, adopted by state legislative bodies, except in the case of Utah in which the state's high court in 2008 approved and adopted a reporter's shield rule governing all court proceedings in that state. The Utah rule was proposed and advocated by several journalism groups. There often is substantial variance from state to state in both the SCOPE of protection and the DEFINITIONS used in these shield laws (example: no uniform definition across the states in terms of who constitutes a journalist or reporter protected under these laws). These laws, in more or less limited terms, 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 (confidential and/or nonconfidential; sources only or sources and/or information) and any qualifications that might accrue [result] (the privilege is waived through voluntary disclosure of other parts of the material, instances when disclosure is mandated). Example: Alabama shield law provides the following: "No person engaged in, connected with, or employed on any newspaper, radio broadcasting station or TV station, while engaged in a news gathering capacity shall be compelled to disclose, in any legal proceeding or trial, before any court or before a grand jury in any court, before the presiding officers of any tribunal or his agent or agents, or before any committee of the legislature, or elsewhere, the sources of any information procured or obtained by him and published in the newspaper, broadcast by any broadcasting station, or televised by any TV station on which he is engaged, connected with or employed." The precise language of state shield laws is very important in determining both who and what they will and will not cover or protect! This was illustrated in Price v. Time, Inc. (2005) in which the 11th Circuit held that Alabama's shield law did not apply to the magazine Sports Illustrated. Engaging in the process of statutory construction, the appellate court held that the Alabama statute's phrase "newspaper, radio broadcasting station or television station" DID NOT COVER MAGAZINES like Sports Illustrated. In reaching this conclusion, the appellate court followed the plain meaning rule - it gave the statutory words their ordinary meaning and did not impart its own views on the legislative language. The 11th Circuit wrote "it seems to us plain and apparent that in common usage 'newspapers' does not mean 'newspaper and magazine.'" Box: Drawing boundaries: Does Buzzfeed qualify for protection under state shield laws? Shield laws vary from state to state in outlining who they protect - and judges are often asked to determine a law's boundaries. 2017, federal magistrate judge ruled Florida's shield law protected the online news outlet Buzzfeed from having to reveal the source of the so-called Steele dossier, which the site published in 01/2017. The dossier was a 35-page collection of memos prepared by former British spy Steele that included a variety of allegations about President Trump and Russian interference in the 2016 presidential election. Gubarev, an alleged Russian hacker, sued Buzzfeed for defamation, claiming that false statements in the dossier that referenced him and his web-hosting company injured his reputation. Gubarev filed suit in Florida, where a subsidiary of his company is based. He requested documents from Buzzfeed as part of the lawsuit, but Buzzfeed asserted the reporter's privilege, claiming the requested documents would identify the source who provided the dossier. Florida's shield law applies to "professional journalists" defined as a "person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or TV station, network, or news magazine." Gubarev argued the FL shield law didn't apply to Buzzfeed because the news outlet was not a "newspaper, news journal, news agency, press association, wire service, radio or TV station, network, or news magazine." The judge flatly rejected that argument. "There is nothing in the statute that limits the privilege to traditional print media. Because Buzzfeed writes stories and publishes news articles on its website, it qualifies as a 'news agency,' 'news journal' or 'news magazine'" Magistrate Judge O'Sullivan wrote. Because the shield law applied to Buzzfeed, the next question for the judge was whether the law protected Buzzfeed from revealing its source. Florida's shield law provides journalists with a qualified privilege. A party seeking disclosure of information from a reporter must make a clear and specific showing that (1) the information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought, (2) the information cannot be obtained from alternative sources and (3) a compelling interest exists for requiring disclosure of the information. In Gubarev v. Buzzfeed, Inc. Judge O'Sullivan ruled that Gubarev had not made a "clear and specific showing the identity of the source cannot be obtained through alternative sources" and thus denied the request to force Buzzfeed to disclose who provided it the dossier Are individuals who post factual information and opinions on online message boards journalists for purposes of state shield laws? 2010, New Jersey appellate court ruled in Too Much Media, LLC v. Hale that New Jersey's shield law did not cover or protect a woman who posted messages on a site called Oprano.com. The site described itself as the "Wall Street Journal for the online adult entertainment industry." It is a forum where members read and post their thoughts on message boards regarding various subjects related to the adult entertainment industry, with the comments typically available for public viewing. NJ's shield law, however, applies to members of the "news media" which it defines as individuals who are "engaged on, engaged in, connected with, or employed by newspapers, magazines, press associations, news agencies, wire services, radio, TV or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public." It defines "news" as "any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured and obtained while such required relationship is in effect" In rejecting the woman's contention that she should fall within these definitions, the appellate court reasoned "it is not enough to simply self-proclaim oneself a journalist. The only evidence in support of defendant's claim she is a newsperson is her own self-serving characterization and testimony as to her intent in gathering information, which the trial court found not credible" The court added the woman "produced no credentials or proof of affiliation with any recognized news entity, nor has she demonstrated adherence to any standard of professional responsibility regulating institutional journalism, such as editing, fact-checking or disclosure of conflicts of interest" In 2011, New Jersey Supreme Court affirmed the decision that New Jersey's shield law didn't apply in the case, reasoning "we do not find that online message boards are similar to the types of news entities listed in the statute, and do not believe the Legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards" NJ's high court added "neither writing a letter to the editor nor posting a comment on an online message board establishes the connection with 'news media' required by the statute" On the other hand, the NJ Supreme Court made it clear that "maintaining particular credentials or adhering to professional standards of journalism - like disclosing COIs or note taking - is NOT required by the Shield Law" But in 2013, a trial court judge held that NJ's shield law did protect Renna, the primary writer and editor of a blog called County Watchers. The blog reported on alleged waste, corruption and mismanagement in Union County, NJ. At issue in the case were blog postings Renna made about the alleged misuse of county-owned power generators by 16 different Union County employees during Hurricane Sandy in 10/2012. A local prosecutor subpoenaed Renna to testify before a grand jury about the alleged improper use of the generators, but Renna wanted to quash the subpoena on grounds she was protected by NJ's shield law. To resolve the case, Judge Cassidy applied the NJ Supreme Court's ruling from Too Much Media case. In ruling in favor of Renna, Judge Cassidy initially observed "Renna and her two or three other bloggers do in fact author posts about alleged occurrences and issues related to Union County governance and politics not covered by other media sources." The fact that the quality of her writing was "not akin to that of a print news reporter" and the fact Renna's posts sometimes devolved into "ad hominem attacks" on Union County employees DID NOT eliminate protection under the NJ shield law. What was important was Renna regularly posted stories on county meetings, ordinances and budgets. Furthermore, she followed newsgathering methods commonly employed by what Judge Cassidy called "traditional news media entities" such as talking to sources, asking questions at county meetings and using NJ's open records law to obtain documents. Judge Cassidy granted Renna's motion to quash the subpoena and to protect her under NJ's shield law. 2019, Nevada Supreme Court concluded in Toll v. Gilman "a blog should not be disqualified" from the shield law protections offered in that state "merely on the basis the blog is digital, than appearing in an ink-printed, physical form" A lower court judge in the state then relied on that decision to rule in 2020 a blog that "regularly and consistently published current-event-articles" written by a blogger who "obtained, gathered, received, procured, and processed information" was the "functional equivalent of a traditional printed newspaper and therefore is a newspaper" under the state's shield law. Shield laws sometimes suffer from deficiencies. Following are some of the problems: è Few of the laws give a protection that exceeds, or is even equal to, that given by the constitutional privilege è The laws in most of the states are significantly qualified! Example: Laws in AK, LA, NM, ND can be overcome by a mere judicial determination that justice or public policy requires the privilege to yield to some other interest è In some states the reporter waives the privilege upon disclosure of any portion of the confidential matter è In other states the shield law will not apply unless there was an understanding of confidentiality between the reporter and the source è State shield laws often exclude freelance writers, book authors and cable TV operators, as well as bloggers. Example: Florida's shield law applies only to "professional journalists" and it excluded from this definition "book authors" Florida's shield law, however, does include "independent contractors" which means it covers freelancers provided they are "regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood" è Shield laws rarely cover what a reporter witnesses, only what a reporter has been told or given. Example: An appellate court in MD in2003 held the state's shield law didn't protect reporters from complying with administrative subpoenas seeking their testimony at police department administrative hearings when those reporters personally observed and witnessed the relevant event about which their testimony was sought è Many shield laws have loopholes that allow subpoenas of third party records. Reporters Committee for Freedom of the Press reports the laws do not amount for journalists' electronic communications through phones, computers or other technologies. These loopholes could allow the government to evade shield laws by instead subpoenaing phone companies or email services to gather journalists' records - cell phone records, for instance, that would document phone numbers and dates of a journalists' communications. Example: Montana became first state to amend its law to shield journalists' electronic communications from government investigations. The amended MT law bars the government from requesting disclosure "of privileged news media information from services that transmit electronic communications" Shield laws in other states such as CA, CT, Maine, and WA require government bodies to notify the media of third-party subpoenas. While those laws do not provide the absolute protection of Montana's law, requiring notification at least gives journalists the opportunity to fight third-party subpoenas in court. The perfect shield law would likely be preferable to the 1A privilege; but the perfect shield law does not exist! Even in those states that have a shield law, reporters frequently end up relying on the constitutional privilege.

Consent as a Defense The law prohibits only the un... use of a name or likeness for ... or ... purposes! States with privacy statutes usually require w... a... or ... be given before the use -On the other hand, consent does not always need to be in ... to be effective! (9th Circuit, consent may be im... and is to be determined "objectively from perspective of a reasonable person and in light of things like the well-known/established customs of the industry" that used the photo) In any legal action the ... is going to have to prove they had consent to use the name or photo. ... consent is usually un-contestable and will stand as a solid defense against an appropriation claim even if the plaintiff argues they did not ... what they were signing -Condé Nast and tennis player Myskina example (signed consent form or release) (When a party signs a contract, whether they understood it/not, or even read it, bound by the terms!) -Attempts to convince the court ... consent was given can be met with plaintiff's denial, and fact finder will have to decide who is telling the truth. .. consent can be withdrawn up to moment of publication Consent issue is most easily resolved if the subject signed a m... r..., but such documents are not always required to establish ...! -Exception examples: -Schifano couple sued Greene County Greyhound Park for including their photo in an ad brochure for the facility. No written consent form, but ample evidence park officials had told plaintiffs why they were taking the photos and gave them chance to leave if they did not want to be in picture. Plaintiffs did not object or move (AL Supreme Court) -9th Circuit, TV situation comedy "Evening Shade" Country performer Newton sued producers of program because lead character in show also named Wood Newton and some similarities between the real and fictional characters. Newtown never signed release for use of his name, but when the program first telecast he sent a letter to the producers, "I'm flattered you are using my name, everyone who I've talked to thinks I'm exciting and so do I!" Lawsuit filed months after this letter (obvious he consented even if he did not use those words) When Consent Might Not Work Even times when written consent might not work as a defense! 1. Consent given today may not be valid in the ... ..., especially if it is a gratuitous ... consent -Consent given via a ... c... will normally hold up over time. But there are instances in which courts ruled ... consent became ... over time, especially if the n... of the person who gave the consent has increased! Example: Carson took pictures of kids in local garage band playing Acme guitars. Says he will try to sell the photo to the instrument maker and band members ... agree. Nothing comes of the deal. Five years later, band has sold millions of CDs. Acme now buys the picture and uses it with ad slogan, "[Band name] plays Acme instruments" The band sues; Carson and Acme say group gave consent five years ago. The court will likely rule consent is no longer ...! Should have gotten r... before using the photo in the ad. 2. Some people c... ... consent! a. People ... - in most states, must be ... to enter a legally binding agreement. Many cases in which teen girls insist on being ... have signed consent forms permitting photographers to use their pictures. When they disapprove of the use and sue, reveal only ... when they signed the forms. Courts usually demand to see evidence the teen was b... when they lied and ask the defendant to show proof they attempted to v... the age! b. People who are ... ... - often cannot give consent c. People ... in ... - sometimes cannot give consent Up to the ... to be certain the individual who signs the consent form is in fact able to legally give their consent! Simply showing the judge a signed consent statement will rarely carry the day in court 3. Consent to use a particular photograph may be lost if it is s... a... -American fashion model signed release form after photo session giving photographer and anyone else who came to own the pictures the right to use them in any way they chose. Gave up her right to approve of any use -The photo ended up in hands of an advertiser that retouched it and created a salacious tableau - model sued; advertisers argued she had given consent for any use. New York court agreed she abandoned her right to control the use of the ... pictures, but the picture appearing in the ad was not one of those taken by the photographer (the ... photo had been s... a...) -This was 50 years ago, when retouching took work. Nowadays, anyone with a computer can s... a... any photo quickly. But just because it's easy today, doesn't make it ...! -A signed contract will protect the use of only the ... photo with s... r..., not wholesale m... of the particular ... in the picture or the ... in which the subject has been photographed! Post-Mortem Publicity Rights The right to ... traditionally is considered a personal right that ... with the individual! The right to ... may live on ... ...! It is not always clear how states will deal with revenues made long ... ...! Several states have passed ... guaranteeing to heirs the right to protect the c... e... of ... p... f...! -As long as 70 years after ... in California -Short as 20 years in Virginia -Tennessee, home of Elvis Presley, provides a celebrity's ... with an initial 10-year post-mortem right of publicity that can be extended forever if the right is continually exploited (terminated after two years of nonuse) -New York's new post-mortem right of publicity law - 40 years after ... but only applies to celebrities who die on/after May 29, 2021 (when it was passed). Before this, NY held no common law post-mortem right of publicity ... a particular lawsuit is tried is usually critical to the outcome -Louisiana example (no post-mortem right of publicity statute) -Minnesota example (right of publicity under Minnesota common law is descendible) -Hebrew University of Jerusalem sued General Motors for unauthorized use of Einstein's likeness in magazine ad (was not settled if New Jersey common law recognized post-mortem right of publicity or how long it should last - court looked to copyright law for guidance - concluded maximum 50-year post-mortem duration would be reasonable middle ground It isn't just dead inhabitants of the stage and screen (celebrities) whose images are protected. Also images of ... figures (MLK, Rosa Parks, Babe Ruth) are claimed as private property, usable only with permission for a fee

Consent as a Defense The law prohibits only the unauthorized use of a name or likeness for commercial or trade purposes. States with privacy statutes usually require written authorization or consent be given before the use. On the other hand, consent doesn't always need to be in writing to be effective. 9th Circuit wrote in 2012, "consent may be implicit and is to be determined objectively from the perspective of a reasonable person" and in light of things such as "the well-known and established customs of the industry" that used or sold the photograph. But in any legal action the defendant is going to have to prove that he or she had consent to use the name or photograph. Written consent is usually uncontestable and will stand as a solid defense against an appropriation claim, even if the plaintiff argues they didn't really understand what they were signing. When a photographer took pictures of tennis player Myskina, the athlete signed a consent form, or release, permitting Condé Nast publishers to include photos in the 2002 sports issue of GQ. But she sued the magazine for IOP, claiming the magazine appropriated her likeness when it used photos in the way she didn't approve of or anticipate. In its defense, magazine raised the matter of the consent form she had signed. She said she misunderstood the document she signed; English wasn't her first language. A federal court said her assertion, even if true, was irrelevant. When a party signs a contract, which a release is, she is bound by the terms of the contract, whether or not they understood it, or even read it. Attempts to convince a court oral consent was given can be met by the plaintiff's denial, and then the fact finder will have to decide who is telling the truth. Also, oral consent can be withdrawn up to the moment of publication or broadcast. The consent issue is most easily resolved if the subject signed a model release. But such legal documents are not always required to establish consent. Two rulings make this point. Sam and Joseph Schifano sued the Greene County Greyhound Park, dog racing track, for including their photo in an ad brochure for the facility. The plaintiffs, who visited the park often, were photographed while they sat with several other persons in what is called The Winner's Circle, section of the park that can be reserved by groups of spectators. There was no written consent for the use of their picture, but there was ample evidence that park officials had told the plaintiffs why they were taking the photos and gave them a chance to leave if they didn't want to be in the picture. Plaintiffs didn't object or move, when those options were made available by park employees, consented to having their photo taken (Alabama Supreme Court, 1993). Year later the 9th Circuit handed down a similar ruling in lawsuit involving a popular TV situation comedy "Evening Shade." Country music performer Newton sued producers of the program because the lead character in the show, played by Reynolds, was also named Wood Newton. Creator of the program, Thomason, grew up in the same town as the real Newton, and there are some similarities between the real and fictional characters. Newton never signed a release for the use of his name, but when the program was first telecast he sent a letter to the producers that said, "I'm flattered that you are using my name, everyone who I've talked to thinks I'm exciting and so do I" Lawsuit was filed many months later, after the producers had rejected music that Newton had written and submitted for use on the program. Though Newton never uttered the words, "I consent" it is obvious he did. 2020, Dancel sued Groupon Inc. under the Illinois Right of Publicity Act based on Groupon's use of her publicly posted Instagram photo of herself for a coupon for a restaurant because Dancel had geotagged the restaurant as a location on her post. 7th Circuit ruled a question of fact existed as to whether Dancel consented to Groupon's use of her photo when she publicly posted the photo to her account. Although Dancel didn't explicitly give Groupon permission to use her photo, the court held whether she consented to Groupon's use would depend on what she understood she agreed to Instagram's privacy policy, which informed her any publicly posted content would "become available to the public" and may be re-shared by others. When Consent Might Not Work Are times when even written consent might not work as a defense, and the media must be aware! 1. Consent given today may not be valid in the distant future, especially if it is a gratuitous (unwarranted, unjustified) oral consent Consent given via a written contract will normally hold up over time. But there have been instances in which courts have ruled oral consent became invalid over time, especially if the notoriety of the person who gave the consent has increased. Imagine Harry Carson took a picture of the kids in a local garage band playing Acme guitars and bass. He says he will try to sell the photo to the instrument maker and the band members orally agree. But nothing comes of the deal. Fast forward five years later, the band has sold five million CDs. Acme now buys the picture and uses it an ad slogan, "Hideous Shellfish (the band) plays Acme instruments" The band sues; Harry and Acme say the group gave consent five years ago. The court very likely could rule consent is no longer valid! Should have gotten reauthorization before using the photo in the ad. Written consent very likely would have held up. 2. Some people cannot give consent! Who can't give consent? a) People under age. In most states, must be 18 to enter a legally binding agreement. Many cases in which teen girls who insist they are 18 have signed consent forms permitting photographers to use their pictures. When they disapprove of the use and sue, they reveal they were only 16 when they signed the forms. Courts usually demand to see evidence the teen was believable when they lied and ask the defendant to show proof they attempted to verify the age. b) People who are mentally ill, very often unable to consent c) People incarcerated in prisons, sometimes cannot give consent It is up to the defendant to be certain the individual who signs the consent form is in fact able to legally give their consent! Simply showing the judge a signed consent statement will rarely carry the day in court 3. Consent to use a particular photograph may be lost if the photograph is substantially altered Prominent American fashion model signed standard release form after photo session giving photographer and anyone else who came to own the pictures the right to use them in any way they chose. Gave up her right to approve of any use. The photo ended up in the hands of an advertiser that retouched it and created a salacious tableau. The model sued; advertisers argued she had given consent for any use. New York court agreed she had abandoned her rights to control the use of the original pictures, but the picture that appeared in the ad was not one of those taken by the photographer. The original photo had been substantially altered. The broad consent didn't work to protect the defendants. Case decided 50 years ago when it took work to retouch a photo. Nowadays anyone with a computer can substantially alter any photo quickly. But just because it's easy today, doesn't make it legal! Magazine editors and providers of content for Web must take special care. A signed consent will protect the use of only the original photo with slight retouching, not wholesale modification of the particular subject in the picture or the setting in which the subject has been photographed. Life After Death: Post-Mortem Publicity Rights The right to PRIVACY traditionally is considered a personal right that dies with the individual. But the right to PUBLICITY may live on after death. One group of dead celebrities or 'delebs' tracked by the magazine generated $363 million between Oct. 2013-4 with Michael Jackson's music and publicity rights generating $140 million alone. Elvis Presley, generated $55 million. New tech has made it even easier for deceased celebrities' images to be used in a variety of ways will only increase revenue streams long after death. However, not always clear how states will deal with these revenues. Several states have passed statutes guaranteeing to heirs the right to protect the commercial exploitation of dead public figures for as long as 70 years in California and as short as 20 years in Virginia. Tennessee, home of Presley, provides a celebrity's estate with an initial 10-year post-mortem right of publicity that can be extended forever if the right is continually exploited (the right is terminated when there is a two-year period of nonuse by the estate). As long as Presley's heirs continue to exploit his name, likeness and image, they will be able to profit forever. On May 29, 2021 New York's new post-mortem right of publicity law came into effect. The law, passed in 11/2020 provides for a post-mortem right of publicity for a 'deceased personality' or 'deceased performer' for a period of 40 years after the person's death. The law, only applies to celebrities who die on or after May 29, 2021. The new law is an important development, because in 1984 New York Court of Appeals held there was no common law post-mortem right of publicity at all. Where a particular lawsuit is tried is usually critical to the outcome! Vernon T. Tatum Jr. sued operators of New Orleans International Airport for appropriation when an image of his late mother, Ellyna C. Tatum appeared in a mural on the airport's walls. Tatum was well-known jazz singer in New Orleans who died in 1986. LA appellate court, however, dismissed the case, noting 'the right to privacy is a personal right that belonged only to the late Ms. Tatum. Nothing in LA law, statutorily or jurisprudentially, gives Mr. Tatum the authority to assert this right on behalf of his deceased mother' LA doesn't have a post-mortem right of publicity statute, essentially ending the case filed. In 2017, the estate of Prince, sued over distribution of five previously unreleased songs. The defendants argued the right of publicity claims should be dismissed because Minnesota doesn't recognize a post-mortem right of publicity. A federal district court disagreed, holding the right of publicity under Minnesota common law is descendible. The Hebrew University of Jerusalem, owns all of Albert Einstein's 'literary property and rights' under his will sued General Motors for unauthorized use of Einstein's likeness in 2012. Case involved a magazine ad that featured his face digitally pasted onto a muscled physique accompanied by the written message, "Ideas are sexy too" Because it wasn't settled if NJ common law recognized a common law post-mortem right of publicity or how long that right should last, the court looked to copyright law for guidance. The court concluded a maximum 50-year post-mortem duration would be a reasonable middle ground, because at the time that Einstein's rights passed to the Hebrew University in 1982, the then-existing Copyright Act suggested a life-plus-50-years term was unreasonable. District court noted an open-ended right of publicity or one longer than 50 years would raise considerable 1A concerns and create infinite curb on expression. The use of dead entertainment celebrities to sell products is a growing phenomenon, and in some ways makes sense. But today it isn't simply dead denizens (inhabitants) of the stage and screen whose images are protected. The images of historical figures like MLK, civil rights icon Rose Parks, Babe Ruth, etc. are claimed as private property, usable only with permission for a fee. The Hebrew University of Jerusalem earned $76 million between 2006-11 from companies seeking to use Einstein's image. New challenges in this area of privacy law will continue to emerge in the coming years as computer tech makes it possible to bring images of creatures, aliens, starships, and even dead celebrities to the motion picture and TV screen. Using technologies pioneered by individuals like George Lucas and others, it is possible to create entire commercials and even feature films that contain the images of celebrities long since departed from Earth, images that look as real as photographs of living people. There is no doubt individuals who are charged with crafting the law in this realm will have to be as creative as the people who generated this tech. Summary Appropriation of a person's name or likeness for commercial or trade purposes without permission is an IOP and may violate a person's right to publicity. Use of an individual's photo, sketch of a person, and nickname or stage name all considered use of name/likeness. The publication of news and matters of public interest in magazines, books, newspapers and broadcasts not considered a trade purpose, even though the mass medium may make a profit from publication. People who are named or pictured in news stories or other material cannot sue for appropriation. A news medium may republish or rebroadcast news items or photos already carried as news stories in ads for the mass medium to establish quality or kind of material carried by the medium. Anyone who seeks to use name/likeness of individual for commercial or trade purposes should gain written consent from that person. Even written consent may be invalid if given many years before publication, if person cannot legally give consent, or if photograph/material is substantially altered. Right to publicity - most often instituted by people well-known who believe the unauthorized use of their name/likeness has deprived them of an opportunity to reap financial gain by selling this right to the user. Some states the right to publicity can be passed on to heirs like any other piece of property, means an individual's estate can control the use of their name and likeness after death.

Regulation of Nonobscene Erotic Material Erotic Materials Online -Beginning in 1996, Congress passed series of ... federal statutes designed to control what Americans could see on the ...; the transmission of obscene material over the ... is clearly ... by federal law (statutes that make it a crime to transport obscene material in ... c... - whether in car/truck, via U.S. Postal Service, by TV transmission or satellite relay, also barred movement of such material over the ...) These statutes adopted by Congress focused on nonobscene, adult-oriented, sexually explicit material - material protected by the ... ... 1. Communications Decency Act (1996) -Part of massive law that restructured t... r... -Made it a crime to ... ... material or allow ... material to be ... over p... c... n... to which ... have access! Fines of $250k and jail sentence of 5 years possible -Defined "..." as any comment, request, suggestion, proposal, image, or other communication that in context depicts or describes in terms of ... ... as measured by ... ... s..., ... or e... a... or o... Reno v. ACLU (1997) -Supreme Court decision...? -Supreme Court held ... CDA's provisions protecting minors from "..." and "... ..." ... communications -Initially observing ...-conveyed speech deserves the same full ... ... protection as speech transmitted by ..., Justice John Paul Stevens wrote for majority that the statute "places an unacceptable heavy burden on ... speech, and going far beyond restricting ... speech under ..., threatens to torch a large segment of the ... community" -Court did not attack the congressional goal of protecting ... from potentially harmful materials but criticized on grounds of both ... for ... and ... doctrines (the terms "..." and "... ..." to carry out this goal) -In attempting to deny ... access to potentially harmful speech, it effectively suppressed a large amount of speech ... had a ... right to receive and address to one another (CDA could stop the discussion of sexually frank talk but legitimate topics like birth control practices and consequences of rape) 2. Child Online Protection Act (1998) -Congress tried again; statute prohibits commercial Web sites from k... ... to ... (people under ...) material that is ... to ... -"... material" is defined as material that, with respect to ..., is specifically created to appeal to ... interests that graphically depicts l... or ... b... and that lacks serious ..., ..., or ... ... -Law requires jurors to apply "... ... s..." when assessing material -But the law includes provisions that bar any prosecution of a Web site operator who has ... access to the site to those with ... c..., ... a..., ... a... c..., or ... p... ... n... (idea is only ... would have access to one of these items, so the site operator honestly believes it is communicating with an ..., not a ...) Ashcroft v. ACLU (2004) -Supreme Court decision...? -After five years bouncing around federal courts, U.S. Supreme Court upheld on ... ... grounds a lower-court ... ... against the enforcement of COPA -COPA viewed as a ...-... ... on speech subject to ... s... review, the government must prove COPA restricts n... m... speech than is ... to achieve its goal of making the Internet safe for minors. As part of this task, government must show any less ... alternatives proposed by ACLU and other plaintiffs would not be as ... as COPA in serving its goal -Justice Kennedy, Internet ... parents can purchase are less ... than COPA (impose s... ... on speech at the receiving end than u... ... at the source) -In contrast to COPA, promoting the use of ... does not condemn any category of speech as criminal, the potential ... effect is eliminated or diminished -Added ... will be more effective than COPA. Government had not yet demonstrated COPA is the least ... alternative available to protect minors, so the majority sustained the ... ... preventing enforcement of COPA and remanded case for trial -Late 2006, government back in federal court in Pennsylvania trying to resuscitate COPA, ACLU v. Gonzales (new Attorney General) -But in March 2007, U.S. District Judge Reed issued ... ... against enforcement of COPA (COPA is not ... t... to Congress' ... ... in protecting minors and is ... and ...!) -Federal government went back to court in 2008 to ask 3rd Circuit to overturn Reed's ruling that ... ... the measure. 3rd Circuit affirmed Reed's ... (COPA cannot withstand ... s..., ..., or ... analysis and is un...) -U.S. Supreme Court denied government's petition for writ of certiorari in 2009 3. Children's Internet Protection Act (2001) -Congress made third and final attempt at limiting access to the ...; law requires p... ... to install a...-... ... on all their computers that provide ... access to continue to receive ... f... (federal government provides $200 million/year to pay for this access) ... often "overblock" and screen out innocent material and important information on topics such as safe sex, rape, breast cancer, STDs -Some ... maintain two sets/sections of computers (some with ..., some without); some ... have ... on all their computers but adults may request the ... be disabled before their computer sessions; other libraries choose not to ... sexually explicit online content at all United States v. American Library Association (2003) -Supreme Court decision...? -Upheld CIPA against challenge that the act violated ... ... of adult ... patrons to receive speech -Court made clear adults must be allowed, upon request, to have blocked sites unblocked and/or to have the ... software disabled during their sessions (balances adults' rights to receive information with shielding minors from sexual expression) Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) (2018) -Congress passed law aimed at curbing ... ... online; driving force behind legislation seemed to be desire to regulate and prosecute Backpage.com, a classified advertising site that featured ads for escort services and massages that were sometimes fronts for illegal ... activity or for sex with ... (long faced scrutiny for its connections with ... ...) -States had adopted laws targeting the site, the site had been sued several times and critical Senate report in 2017 alleged Backpage was knowingly profiting from ... a... -Backpage successfully fought off most attempts at liability thanks to ... ... of the ... ... Act (it did not create the ads itself) -... ... generally shields OSPs from liability when they are conduits than publishers/speakers for information posted by ... ... -FOSTA chips away at ... ... immunity when it comes to ... ...; law includes language expressing this act was not intended to provide legal protection to websites unlawfully promoting and facilitating ... and websites that facilitate ... in advertising the sale of unlawful sex acts with ... ... victims -FOSTA imposes ... penalties on any person who owns, manages or operates an interactive computer service (or attempts/conspires to do so) with the aim of promoting or facilitating ... -Allows authorities to pursue sites for knowingly assisting, supporting, or facilitating ... ... -The law amends ... ... to make clear it doesn't limit any ... a... (... by people claiming platforms enabled them to be ... for sex) or ... p... for violation of ... ... laws or for promoting or facilitating ... -Unintended consequences? a. Some argue the law hurts ... ... by forcing them out on the street and having to work with pimps than advertising in... ... and meeting in hotels (The Sex Workers Outreach Project-USA, organization that champions rights of those involved in sex trade, said FOSTA creates inability for ... ... and patrons to establish the identity of one another and set clear service b... which keep everyone safe - The organization called FOSTA "an anti ... ..., anti-f... ... and pro internet ... bill." b. Electronic Frontier Foundation said FOSTA makes t... ... less safe while ... "online speech by forcing Internet platforms to ... their users" (After FOSTA's passage, Craigslist immediately eliminated its "personals" and "therapeutic services" sections) -June 2021, Government Accountability Office report found in the time since FOSTA became law, it had factored into only ... ... p... -DOJ officials told the GAO that was because FOSTA is relatively ... and also because prosecutors have had success using other ... s... (such as racketeering and money laundering) -Backpage was shut down ... FOSTA went into effect. DOJ announced it had seized the site five days before Trump signed FOSTA into law. Some critics have wondered if FOSTA was necessary at all -GAO report suggests Backpage's shutdown caused the "online commercial sex market" to ..., which has made finding and fighting ... ... more challenging

Erotic Materials Online Beginning in 1996, Congress passed series of three federal statutes designed to control what Americans could see on the Internet. The transmission of obscene material over the Internet is clearly banned by federal law. Statutes that make it a crime to transport obscene material in interstate commerce, whether in truck, car, via U.S. Postal Service or UPS, or by TV transmission or satellite relay, also bar the movement of such material over the Internet, even through email. Transmission of child pornography via computers is also banned under federal law The statutes adopted by Congress focused on non-obscene, adult-oriented, sexually explicit material - material protected by the 1A. The laws included: 1. 1996 Communications Decency Act 2. 1998 Child Online Protection Act 3. 2001 Children's Internet Protection Act The Communications Decency Act CDA was one part of a massive law that restructured telecommunication regulations. Among other things, the act made it a crime to transmit indecent material or allow indecent material to be transmitted over public computer networks to which minors have access. Fines of $250k and a jail sentence of five years possible for those convicted of violating this measure. The law defined indecency as "any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs" Reno v. ACLU (1997) (9-0) Supreme Court held unconstitutional CDA's provisions protecting minors from "indecent" and "patently offensive" Internet communications. Initially observing Internet-conveyed speech deserves the same full 1A protection as speech transmitted by print, Justice John Paul Stevens wrote for majority that the statute "places an unacceptably heavy burden on protected speech" and by going far beyond restricting obscene speech under Miller, "threatens to torch a large segment of the Internet community" The court did not attack the congressional goal of protecting minors from potentially harmful materials, but it criticized on the grounds of both void for vagueness and overbreadth, the terms and language used in the CDA to carry out that goal. Not only were the terms "indecent" and "patently offensive" lacking precise definition, but the court held the CDA, in attempting to deny minors access to potentially harmful speech effectively suppresses a large amount of speech adults have a constitutional right to receive and to address to one another. Stevens noted whereas the Miller obscenity test protects speech with serious literary, artistic, political or scientific value, the CDA lacked such a saving provision to protect socially redeeming speech that may be sexually explicit. CDA thus could stop discussion of sexually frank talk but legitimate topics such as birth control practices and consequences of rape The Child Online Protection Act The following year Congress tried again when it adopted COPA. The statute prohibits commercial Web sites from knowingly transmitting to minors (people under 17 years old) material that is harmful to minors. Harmful material was defined as material that, with respect to minors, is specifically created to appeal to prurient interests, that graphically depicts lewd or sexual behavior and that lacks serious literary, artistic or scientific values. The law requires jurors to apply "contemporary community standards" when assessing material. Fine of $50k and 6-month jail sentence may be imposed for each violation. But the law includes provisions that bar any prosecution of a Web site operator who has restricted access to the site to those with credit cards, debit accounts, adult access codes or adult personal ID numbers. The idea of this provision is only adults would have access to one of these items, and therefore the site operator could honestly believe they are communicating with an adult, not a minor Ashcroft v. ACLU (2004) (5-4) After the case bounced around the federal courts for five years, the U.S. Supreme Court upheld on 1A grounds a lower-court preliminary injunction against enforcement of COPA Examining COPA as a content-based regulation on speech subject to strict scrutiny review, the high court noted the government must prove COPA restricts no more speech than is necessary to achieve the goal of making the Internet safe for minors. As part of this task, the government must show any less restrictive alternatives proposed by the ACLU and the other plaintiffs would not be as effective as COPA in serving its goal. Justice Kennedy wrote for the five-justice majority that Internet filters parents can purchase "are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source" Kennedy noted in contrast to COPA, promoting the use of filters doesn't condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. He added filters may well be more effective than COPA. The government had not yet demonstrated that COPA is the least restrictive alternative available to protect minors, the majority sustained the preliminary injunction preventing enforcement of COPA and remanded case for trial on the merits In late 2006, government was back in federal court in Penn. trying to resuscitate COPA, with case: ACLU v. Gonzales (because Gonzales replaced Ashcroft as attorney general) But in March 2007, U.S. District Judge Reed Jr. again rebuffed government, issuing permanent injunction against enforcement of COPA and holding that COPA "is not narrowly tailored to Congress' compelling interest" in protecting minors and COPA is "impermissibly vague and overbroad" The federal government STILL did not give up on COPA; it went back to court in 2008 (full decade after COPA became law) to ask 3rd Circuit to overturn Judge Reed's 2007 ruling that had permanently enjoined the measure. Predictably, 3rd Circuit affirmed Reed's injunction and concluded "COPA cannot withstand strict scrutiny, vagueness, or overbreadth analysis and is unconstitutional" The appellate court extolled the virtues of filtering software than government regulation, writing "filters and the Government's promotion of filters are more effective than COPA" The case finally came to close in January 2009 when U.S. Supreme Court denied government's petition for a writ of certiorari to revisit the 3rd Circuit's opinion. After more than a decade of litigation, COPA never took effect and the 1A triumphed! The Children's Internet Protection Act Congress made its third and final attempt at limiting access to the Internet in 2001 when it adopted CIPA. The law requires public libraries to install anti-pornography filters on all their computers that provide Internet access to continue to receive federal funding (so-called 'e-rate funds') that subsidizes their Internet access. Millions of Americans access the Internet via library computers. The federal government provides about $200 million each year to pay for this access One problem with filters is they "overblock" and screen out innocent material and important information on topics such as safe sex, rape, breast cancer and STDs. Some libraries today thus maintain two sets of computers - some with filters that minors can use (children's section) and some without filters that adults may use (adults section). Alternatively, some libraries have filters on all computers, but adults may request the filter be disabled before their own computer sessions. Other libraries choose not to filter sexually explicit online content at all, a fact exposed in 2006 in CT when a registered sex offender was caught looking at child pornography on a computer at the main branch of the Hartford Public Library United States v. American Library Association (2003) (6-3) Upheld CIPA against challenge that the act violated 1A rights of adult library patrons to receive speech. The court made clear adults must be allowed, upon request, to have blocked sites unblocked and/or to have a filtering software disabled during their sessions. This balances adults' rights to receive information with the interest in shielding minors from sexual expression. "If on a request of an adult user, a librarian will unblock filtered material or disable the software filter without significant delay, there is little to this case" (Kennedy) The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) (2018) Congress passed law aimed at curbing sex trafficking online. A driving force behind legislation seemed to be desire to regulate and prosecute Backpage.com, classified ad website that featured ads for escort services and massages that sometimes were fronts for illegal prostitution activity or for sex with minors. Backpage long faced scrutiny regarding its connections to sex trafficking. States had adopted laws targeting the site, the site had been sued several times and critical U.S. Senate report in 2017 alleged Backpage was knowingly profiting from illegal activity Backpage, though, successfully fought off most attempts at liability under Section 230 of Communications Decency Act because it didn't create the ads itself. Section 230 generally shields online service providers from liability when they are mere conduits (than publishers or speakers) for information posted by third parties. Section 230's proponents say it has been essential in fostering the growth of the Internet - Internet is able to thrive on user-generated content without holding platforms or OSPs responsible for the content users create FOSTA chips away at Section 230 immunity when it comes to sex trafficking. The law includes language expressing the "sense of Congress" that Section 230 "was not intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims" FOSTA imposes criminal penalties on any person who owns, manages or operates an interactive computer service (or attempts or conspires to do so) with the aim of promoting or facilitating prostitution. Allows authorities to pursue sites for "knowingly assisting, supporting, or facilitating" sex trafficking. The law amends Section 230 to make clear the section doesn't limit any civil action (lawsuits by people claiming online platforms enabled them to be trafficked for sex) or criminal prosecution for violation of sex trafficking laws or for promoting or facilitating prostitution Though FOSTA sought to achieve the important goal of combatting sex trafficking, concerns exist about its unintended consequences. Some argue the law actually hurts sex workers by forcing them out on the street and having to work with pimps than advertising individually online and meeting in hotels or rooms. The Sex Workers Outreach Project-USA, organization that champions rights of those involved in sex trade, said FOSTA creates "inability for sex workers and patrons to establish the identity of one another and set clear service boundaries which keep everyone safe" The organization called FOSTA "an anti sex work, anti-free speech and pro internet censorship bill." And the Electronic Frontier Foundation, non-profit that champions civil liberties in the digital world, said FOSTA makes trafficking victims less safe while silencing "online speech by forcing Internet platforms to censor their users" After FOSTA's passage, Craigslist immediately eliminated its "personals" and "therapeutic services" sections. Craigslist said it took those sections offline because it didn't want to risk liability under FOSTA and jeopardize its other services June 2021, Government Accountability Office issued report that examined U.S. Department of Justice enforcement actions against online platforms that promote prostitution and sex trafficking in period from 2014-21. GAO report found in the time since FOSTA became law, it had factored into only one criminal prosecution. DOJ officials told the GAO that was because FOSTA is relatively new and also because prosecutors have had success using other criminal statutes (such as racketeering and money laundering). GAO report also found in the time period, no victims had sued platforms and obtained restitution as a result of FOSTA Backpage was shut down before FOSTA went into effect. DOJ announced it had seized the site on April 6, 2018, five days before Trump signed FOSTA into law. Backpage's co-founder and CEO, Ferrer, pleaded guilty to conspiracy to facilitate prostitution and to engage in money laundering. Some critics have wondered if FOTA was necessary at all GAO report suggests Backpage's shutdown caused the "online commercial sex market" to fragment, which has made finding and fighting sex traffickers more challenging. "Current landscape of the online commercial sex market heightens already-existing challenges law enforcement face in gathering tips and evidence. Gathering tips and evidence to investigate and prosecute those who control or use online platforms has become more difficult due to the relocation of platforms overseas, platforms' use of complex payment systems, and increased use of social media platforms"

Variable Obscenity Ginsberg v. New York (1968) -States can maintain ... ... of obscenity for ... [this is suitable] and another for ... [this is unsuitable] Supreme Court felt an important distinction to draw! -Enables ...-... ... of ... ... material if the purpose is preventing ...'s e... Example: Airport - magazine store, top shelf with black cover - face shown but black below [age protecting screens]. Magazines may also be put up, behind the counter, or in the back of the store This case enables variable obscenity! Can regulate how ... ... material is marketed so long as the material is not ... -Regulations cannot in any way interfere with the ... of ... ... material to ... With our airport example, you may have to ask someone behind the counter but you can still purchase the ... ... material! But if an airport completely .../... ... ... material this would not be allowed Ginsberg was a New York beat poet, write up on homosexuality We are no longer treating ... and ... the same (versus Hicklin rule) - ... are not ...! Child Pornography -Not ... protected, so no need to apply ... ...! [Just off the table 100% - not subject to the obscenity definition, already ... - courts apply the ... ...] So, yes, government can regulate -A ... image of a ... does not always constitute child pornography Example: ... in the bathtub as child, taken by parents -Image must be "..." to qualify! [revealing overt ... ...] Dost Factors (Child Pornography) [How courts decide if something is child pornography] 1. Focal point of the depiction is on the child's ... or ... area 2. ... for the image is ... ... (e.g., place or pose) 3. Child is depicted in an ... ... or ... ..., according to child's ... Example: Child wearing lingerie or other adult sexual garment 4. Child is ... or ... ... or ... 5. Image suggests ... ... or ... to ... in sexual activity 6. Image is intended to elicit a ... ... from ... Example: Nirvana, "Nevermind" album Boy in album cover sued living members of band claiming this is child pornography Fishing baby for dollar bill - naked (not ...!) Let's apply the Dost factors 1. NO - can see the child's ... (see blank) but not the emphasis 2. NO - place or pose considered 3. Maybe? 4. Yes 5. NO 6. NO - parody of baby swimming like a fish to the dollar Not all factors need be present but are considered "..." using a "... of the ..." approach! No one factor is a smoking gun - taken holistically on a case-by-case basis Child-Produced Pornography - Sexting Minors who t..., ... and/or ... ... photos or videos of ... or other ... are ... ... from child pornography statutes! A child can ... child pornography statutes and could be associated with ... ... status (in some states)! Starting in 2010, when "sexting" became a widespread issue, states started adopting legislation designed to reduce charges from ... to ... or less if: a. ... [two underaged people sending to one another in a ... (same word) manner] b. ...-time ... [will still be charged - but a ... may be an overreach - If these elements apply, may reduce the charge from a ... to a ...!] Would be a ... f... ..., ... s... ...! States are noting a difference between showing of child pornography among ... and ... (But ... are still not off the hook!) Regulation of Nonobscene Erotic Material Sexually Oriented Businesses (SOBs) [often regulated] *Indecent material is protected but may be regulated! -... regulation -... ... regulations Although ...-... (banning something due to c..., s... ..., because it is sexually explicit), courts apply "... ..." standard (what we see for ...-... regulations though this is not - treat it like it is) for reviewing laws, similar to "..., ... and ... restrictions!" (as long as you can still perform/do speech, just not at a certain locale or p...) SOBs Think sex novelty shops, strip clubs, topless/all-nude bars, pornography stores Zoning regulations of SOBs allowed if (1 of 2 means to regulate SOBs) -Designed to decrease or reduce ... ... of SOBs Example: Children not get access to or seeing sexual material, so no SOB within 1000 ft of a school [because it could impact children seeing what occurs in and outside an SOB] -Serves a ... government ... Example: In our earlier example, the ... (third blank) would be to protect children -Does not ... ... a... SOBs in the municipality and unreasonably limit ... a... of ... Example: If a municipality said "No SOBs allowed" it could not do that Can ... SOB owners (not the most commercially viable land, not the most land, in a less populated/crowded area of the city), owners like not to open shop or have a successful SOB - but cannot outright ... them! Expressive conduct regulations of SOBs allowed if (2 of 2 means to regulate SOBs) Example: You can own a strip club, but dancers need to have clothes covering their genitalia or have a topless bar but not an all-nude bar -Clothing standards, sale of alcohol, etc. -Serve a ... government ... unrelated to the ... of speech and Example: If a municipality said, "We just don't like to see naked dancers" Wouldn't work! A better ... (second blank) might be, to protect dancers/patrons/children from harm or community from alcoholism (those ... impacts!) -Are ... ... (not substantially ... than ...) to serve the ... Example: Protect from sexual conduct of dancers - no touching or distance between dancers and patrons (no ... than ...!) Erotic Materials Online Since 1996, ... has repeatedly attempted to limit the spread of nonobscene erotic materials online [...] 1996 Communications Decency Act (CDA) -Made it a crime to ... ... material or to ... ... material to be ... over ... ... n... to which ... have access! -Provisions protecting ... held ... by Supreme Court! (Reno v. ACLU) [Struck down] The CDA does include Section 230 - considered by Supreme Court harmless - Internet Service Providers and social media platforms cannot be held ... for what ... ... posts on their site [the ... is held ..., not the ...] 1998 Child Online Protection Act (COPA) -Prohibited ... ... from ... t... ... material to ... -Supreme Court considered the law a ...-... restriction and applied ... ..., held the law to be ... (never took effect!) (Ashcroft v. ACLU); (ACLU v. Gonzales) [Struck down] 2001 Children's Internet Protection Act (CIPA) -Requires ... ... to install ...-... ... on their computers -Supreme Court ... law, finding it balances ...' rights to receive ... while s... ... from ... content Example: If a blocker is installed to keep from accessing pornography, an ... may ask to ... the site or to remove the ... while they use the computer [this has to be allowed, must be allowed to open/unblock] [Upheld] (United States v. American Library Association) Trend: Government ... at regulating pornography online, but more allowed if protecting ... than not letting ... see

Ginsberg v. New York (1968) -States can maintain one definition of obscenity for adults and another for juveniles -Enables content-based regulations of sexually explicit material if the purpose is preventing children's exposure Not eliminated -Regulations cannot in any way interfere with the flow of constitutionally protected material to adults Completely eliminated/banned Adults and children Child pornography -Not constitutionally protected, so no need to apply Miller test. Illegal, Dost Factors -A nude image of a child does not always constitute child pornography. Naked -Image must be "lascivious" to qualify - sexual desire Dost Factors 1.Focal point of the depiction is on the child's genitalia or public area 2.Setting for the image is sexually suggestive (e.g., place or pose) 3.Child is depicted in an unnatural pose or inappropriate attire, according to child's age 4.Child is fully or partially clothed or nude 5.Image suggests sexual coyness or willingness to engage in sexual activity 6.Image is intended to elicit a sexual response from viewer Not all factors need be present but are considered "holistically" using a "totality of the circumstances" approach. Example: not lascivious Child-Produced Pornography Sexting -Minors who take, possess and/or distribute sexual photos or videos of themselves or other minors are not exempt from child pornography statutes. -Starting in 2010, when "sexting" became a widespread issue, states started adopting legislation designed to reduce charges from felony to misdemeanor or less if: a. Consensual b. First-time offense Violate, sex offender Felony, felony to misdemeanor Misdemeanor first offense, felony second offense Adults, children, children Sexually Oriented Businesses (SOBs) -Zoning regulation -Expressive conduct regulations -Although content-based, courts apply "intermediate scrutiny" standard for reviewing laws, similar to "time, place and manner restrictions" (content, subject matter), (content-neutral), (place) Sexually Oriented Businesses (SOBs) Zoning regulations of SOBs allowed if: -Designed to decrease or reduce secondary effects of SOBs -Serves a substantial government interest -Does not completely ban all SOBs in the municipality and unreasonably limit alternative avenues of communications Disincentivize, ban Expressive conduct regulations of SOBs allowed if they: -Serve a substantial government interest unrelated to the content of speech and Secondary -Are narrowly tailored (not substantially broader than necessary) to serve the interest Erotic Materials Online Since 1996, Congress has repeatedly attempted to limit the spread of non-obscene erotic materials online [pornography] 1996 Communications Decency Act (CDA) -Made it a crime to transmit indecent material or to allow indecent material to be transmitted over public computer networks to which minors have access -Provisions protecting minors held unconstitutional by Supreme Court Liable, someone else, poster held liable not the platform 1998 Child Online Protection Act (COPA) -Prohibited Web sites from knowingly transmitting harmful material to minors -Supreme court considered law a content-based restriction and applied strict scrutiny, held the law to be unconstitutional (never took effect) 2001 Children's Internet Protection Act (CIPA) -Requires public libraries to install anti-pornography filters on their computers -Supreme Court upheld law, finding it balances adults' rights to receive information with shielding children from sexual content Adult, unlock, filter Unsuccessful, children, adults

Review Obscenity: A ... c... of ... ... material that is not protected by the ... ... -Government can regulate, no ... t... needed! Indecent material: Material that may be ... ... but which is protected by the ... .... Also called "... material" or "... ... material," may be barred in works available to ... Example: Sexually oriented businesses - zoning ordinances and expressive conduct ordinances [Topless dancing vs. all nude dancing] (regulations) - not obscene! Allowed to be regulated but not completely ...! Pornography: A term with no ... significance, referring to a wide array of material ranging from ... to ... protected sexual material Obscenity and indecent language have ... significance vs. pornography which does not [can range in material] Definitions of Obscenity: ... Rule (1873-1957) -Working definition of 'obscenity' adopted by courts when considering ... Act cases -Borrowed from ... law -A work is obscene "if it has a tendency to ... and ... those whose ... are open to such immoral influences and into whose hands it might fall." -In short: "if something might influence the ... of a ..." (or someone who has the capacities of a ...) -... and ..., favored p... [easy to get a conviction] Statutory construction! Law did not properly define obscenity, courts go about defining it. This definition was adopted by courts during the first ~80 years of the ... Act [this act is still around today] ...-... Test (1957-73) 3 part test; we see the definition of obscenity narrows, not as friendly to ...! 1. The dominant theme of the material taken ... a ... most appeal to ... interest [morbid and obsessive curiosity - titillates/arouses the viewer] in sex. 2. A court must find that the material is ... ... because it affronts ... ... standards relating to the description or representation of sexual matters. 3. Before something can be found to be obscene, it must be utterly without r... ... .... Gets basic foundation of our modern obscenity definition. Miller Test builds from here Change of cultural products of country ... Test (1973-now) 3 part test 1. An ... ..., applying ... ... ... standards, finds that the work, taken as a ..., appeals to a ... ... in sex. 2. The work depicts in a ... ... way sexual conduct specifically defined by ... ... .... The Supreme Court kicks the definition of obscenity back to the ... - what would this ... find as obscene - differs by locale - every community sets its own standard of what obscenity is! 3. The work in question lacks serious ..., ..., ... or ... .... Example: Robert Mapplethorpe - gay photographer - provocative, sexually explicit photographs - matter of art (sold in art galleries). Element 3 doesn't apply! Though ... to many, and ... ... to many - had that ... .../merit! All 3 elements must apply! We see the definition is getting harder to define and more specific Prosecution-friendly [Hicklin] -> Harder to determine something as obscene [Miller] Elements of the Miller Test: Element 1: Who is an average person? -... ... or ... determines [they define who an average person is] -Similar to "... person" in invasion of privacy law, not ... ... of ... or ... [assess who else in my community, who else would find it offensive] What is prurient interest? "... or ... interest in ..., ..., or ..." Two considerations: -Work in question must be taken as a ... [... (brief) vs. ... scene or theme] -Prurient interest is only about ..., not ... Element 2: Community standards -Local standards are ... and ... specific "... ..." -... chooses ... -Favors ... (If the definition of obscenity keeps getting narrower, ... will utilize this tool more) ... can choose the ... it plans to prosecute material in Example: Magazine is sold in New York City and Tuscaloosa - prosecutor might bring the case in Tuscaloosa - standards of what counts as obscene/offensive will be different (more likely to win as a prosecutor in Tuscaloosa) ... decides community standards -Not ... ..., but speculation about what other adults in their community would accept and tolerate "..." Defense tool Example: Gay porn magazine [depicting sodomy] is sold in stores in Tuscaloosa - other piece of material similar to this magazine is brought up on charges of sodomy. But... people are buying this first magazine [significant number buying this magazine] Similar types of material/... types of material are already being circulated (did not offend community standards so my work doesn't either!) Element 2: Patent Offensiveness -... l... are supposed to define the kinds of material or conduct that are prohibited as obscene -Many states follow former Chief Justice Rehnquist's description: "representations or descriptions of ... ... ..., n... or p..., a... or s..." and "representations or descriptions of ..., ... functions, and ... exhibition of ..." Many states take this description up as its statutory definition Federal law relies on those local differences! What states have defined as obscene will ... and within community will ... Element 3: Serious Value -To be obscene, a work must "lack serious ..., ..., ..., or ... value" -More narrow than the "utterly without ... ... ..." element of the ...-... test -Test is not whether an ... ... in the community ... find value, but whether a ... ... ... find value!

Obscenity -A narrow class of sexually graphic material that is not protected by the First Amendment Balancing test Indecent material -Material that may be sexually graphic but which is protected by the First Amendment. Also called "adult material" or "sexually explicit material," may be barred in works available to children Eliminated Pornography -A term with no legal significance, referring to a wide array of material ranging from obscenity to constitutionally protected sexual material Hicklin rule (1873-1957) -Working definition of 'obscenity' adopted by courts when considering Comstock Act cases -Borrowed from British law -A work is obscene "if it has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it might fall." -In short: "if something might influence the mind of a child" -Broad and loose, favored prosecutors Roth-Memoirs Test (1957-1973) Prosecution 1.The dominant theme of the material taken as a whole most appeal to prurient interest in sex. 2.A court must find that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. 3.Before something can be found to be obscene, it must be utterly without redeeming social value. Miller Test (1973-Present) 1.An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to a prurient interest in sex. 2.The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. States, state 3.The work in question lacks serious literary, artistic, political or scientific value. Offensive, sexually prurient, artistic value Who is an "average person"? -Trial judge or jury determines -Similar to "reasonable person" in invasion of privacy law, not personal opinion of judge or jury What is "prurient interest"? -"Shameful or morbid interest in nudity, sex, or excretion" -Two considerations -Work in question must be taken as a whole -Prurient interest is only about sex, not violence Incidental vs. predominate scene/theme Community Standards -Local standards are state and locale specific "Venue shopping" -Government chooses venue -Favors prosecutors, prosecutors Jury decides community standards -Not personal opinion, but speculation about what other adults in their community would accept and tolerate "Comparables" Comparable Patent Offensiveness -State laws are supposed to define the kinds of material or conduct that are prohibited as obscene -Many states follow former Chief Justice Rehnquist's description: "representations or descriptions of ultimate sexual acts, normal or perverted, actual or stimulated" and "representations or descriptions of masturbation, excretory functions, and lewd exhibition of genitals." Vary, vary Serious Value -To be obscene, a work must "lack serious literary, artistic, political, or scientific value" -More narrow than the "utterly without redeeming social value" element of the Roth-Memoirs test -Test is not whether an ordinary person in the community would find value, but whether a reasonable person could find value.

State Open-Records Laws ... state also has some kind of open-records law. The access laws either follow the ... formula - ... records are open ... the following - or list the kinds of records the public ... have a right to inspect. The scope and reach of state open-records laws, which sometimes are known as ...-records laws or state ...-of-... laws, will ... from state to state! It is important to know what the law is in your state (Reporters Committee for Freedom of the Press, National Freedom of Information Coalition offer some resources) There are many organizations across the country that concentrate primarily on open-records laws of a specific state (include both ... f... groups and ... entities), have helpful handbooks for journalists summarizing the open-records and open-meetings statutes in a given state Example: Colorado - Colorado Freedom of Information Coalition; CT, FL, NY, PA, TX Most state laws permit inspection of records by ... persons, but a few limit access to public records to ... of the state! The ... people want to see a record is normally considered im... when determining whether they can gain access to the record. The freedom-of-information laws provide access to records held by ... a... in the state, and normally these statutes provide a ... d... of these a...! -Normally included are state o..., d..., d..., b..., b..., c... -Records kept by ... ... agencies (c..., c..., v...) as well as records kept by ... d..., p... u..., and mu... co... In some states records held by the ...! (Frequently these branches of government have established their own policies regarding access to records) State laws either follow a ... or ... definition of a public record ... = ... records possessed by an agency are deemed to be public record ... = only those records that are ... to be kept by ... are considered public record (some states) Is it permissible for one state to prevent ... of other states from enjoying the same right of access to public records that the state affords its ... ...? ...!!! Supreme Court decision in McBurney v. Young (2013) Virginia FOIA provided "all public records shall be open to inspection and copying by any ... of the Commonwealth" but it grants no such right to ...-...! Only ... can use Virginia's FOIA. A handful of other states have similar ...-only-open-records laws! In upholding Virginia's law and ejecting the challenge brought it against it from .. of RI and Ca, Alito wrote for ... Supreme Court, "the distinction the statutes make between ... and ...-... has a distinctly non-protectionist aim. The state FOIA represents a mechanism by which those who ultimately hold s... p... (the ... of the Commonwealth) may obtain an a... from public officials to whom they delegate the exercise of that power!" (The provision limiting the use of the state FOIA to ... ... recognizes that ... t... foot the bill for fixed costs underlying record keeping in the Commonwealth!" (didn't violate the privileges and immunities clause of U.S. Constitution) All state freedom-of-information laws provide ... to disclosure. Agencies m... withhold material that falls under an ... in some states; agencies m... withhold this information in other states! Six common ... to state open-records laws: 1. Information classified as ... by state or federal law 2. L... ... and in... information 3. ... s... and c... information 4. Pr... de... me... (w... ...) 5. ... p... information 6. Information relating to l... against a p... b... Can state and local governments c... certain records they create and maintain to stop their w... d... under freedom-of-information laws? ...!!! -Supreme Court of South Carolina - considered whether the further dissemination of public documents obtained pursuant to South Carolina FOIA "may be restricted where the government entity claims the info is ...-protected under the federal ... law" -The dispute centered on company that collected electronic mapping data, including digital photographic maps, from various government entities and would c... customers a f... for accessing such data on its site -Horry County had ... parts of its mapping data -Ruling in favor of...? Supreme Court of South Carolina held while public information must be granted pursuant to FOIA, a public entity may restrict further ... d... of the information pursuant to a ...! A growing movement in some states to ... from open-records laws the tapes and/or transcripts of 911 emergency telephone calls. Why? -Might include someone's ... w... or t... r... as they are being attacked or otherwise in state of danger -Critics contend they feed s... and v... tastes, especially when recordings are played on TV and then uploaded to Internet for anyone to listen -Alabama amended its open-records laws to ... the release of audio recordings of 911 calls unless judge first determines the ... in... in disclosure outweighs p... ... of the person making the call! (Applies only to audio recordings, not transcripts - available for a reasonable fee) -Access proponents counter the ... needs to hear 911 calls to determine how effectively ... a... such as l... ... respond to such situations -Battle will continue to play out in coming years Obtaining c... of state records can sometimes be an ... proposition! Example: Police department in Milwaukee was going to require the Milwaukee Journal Sentinel to pre-pay more than $3,500 to fulfill the newspaper's request for certain incident reports. The department claimed there were more than 500 reports and that significant time needed to be spent to redact confidential information from them before they could be released. The Sentinel sued Milwaukee PD, claiming it violated the WI Open Records Law by charging it excessive fees for the opportunity to inspect and copy the records it requested and by imposing arbitrary limits on the amount of time staff could spend complying with the paper's request -The Wisconsin Supreme Court ... ruled that information ... be released to the newspaper without having to pay for the redactions Sometimes ... are necessary to bring ... down! -When records are produced, the charges may be ...! Charging a fee for producing a public record isn't ..., though it isn't ... of. In Rhode Island, agencies can charge up to $15 an hour for the search or retrieval of documents, but the first hour within a 30-day time period is free. Colorado charges $33.58 an hour. West Virginia court allowed public bodies in the state to charge for search and retrieval, though the state legislature banned such fees in 2015. In 2021, the Missouri Supreme Court ruled public governmental bodies in that state cannot charge fees for the time attorneys spend reviewing or redacting documents prior to their release. The court held the MO Sunshine Law allows officials to charge requesters for staff time spent locating records - but not attorney review of the records Violating a state's open-records law can prove very ... for ... e...! -MS Ethics Commission ordered City of Jackson to pay more than $170k in legal fees incurred by WLBT-TV (owned by GMG) as it battled for public records -GMG filed an ethics complaint with commission alleging city repeatedly failed to respond in a timely way to public records requests the station filed under the MS Public Records Act. In the most egregious example, city waited almost 600 days to produce phone and text logs, though MS law requires a public body to respond within 7 business days! -"Complying with the public records act is a fundamental obligation of municipal government... without transparency in government, there can be no confidence among the governed, and without the support of the community, those in government can't succeed!" (MS Ethics Commission) The Privatization of Public Government One of the challenges facing the press today results from the trend of ... c... taking over what has traditionally been regarded as ... b...! F...-... and ...-... o... are replacing ... in operating public s..., j... and p..., state and local we... a... and many other state services. These p... agencies are not generally regarded as having the same r... as ... a... to maintain o... ... or hold ... in public! Example: OH Supreme Court found Oriana House, a ... c..., which contracted with Summit County, OH, to operate its alternative jail sentencing and rehabilitation programs was not the "f... e..." of a ... a... and thus not subject to the Ohio Public Records Act! OH Supreme Court found Oriana House e... even though it performed duties h... left to ... a... and despite the fact it received all of Summit County's funds for running the community-based correctional facilities and programs ("No evidence that any ... e... controls the day-to-day operations of Oriana House" "Oriana House was created as a ..., ...-... c... It was not established by a ... e..." "A ... business doesn't open its records to public scrutiny merely by performing services on behalf of the ... or a m... ... Though the OH ruling was not access friendly, some courts have held differently in similar scenarios! Example: TN judge ruled a ... prison company was the f... e... of a ... a... and was subject to TN's open-records law Judge found it significant the state's constitution makes prison maintenance a ... function! TN Court of Appeals upheld the decision (the state could not delegate its responsibilities away to a ... entity!) Example: Supreme Court of WI held municipalities may not avoid liability under WI's open-records law by contracting with an in... co... as... for the collection and custody of its property assessment records, and by then directing any requester of those records to such an as... Remember: All states have laws that govern access to public meetings and public records. Good state open-meetings laws have strong ... d... in support of public meetings, specifically ... a public meeting by listing the number of members who must gather to constitute a meeting and declare v... all actions taken during a meeting that was im... ... to the ...! Most laws provide for ... sessions to discuss matters as p... actions, ... ... transactions and litigation State open-records laws tend to mirror the ... law! They apply to most governmental bodies except the ... and the ...! Most state laws govern all records kept by those agencies, but a few are applicable only to records that are r... to be k... by ...! Exemptions include material specifically e... by other s..., ... ... in... in..., w... ..., and highly ... information Most laws provide access to the ... system in a case a request for data is ..., but both ... and ... have established commissions to act as a... in these matters and ... has adopted a ... am... that governs access throughout state government A major concern facing both journalists and public today is growing number of ... businesses carrying out ... functions

State Open-Records Laws Every state also has some kind of open-records law. The access laws either follow the federal formula - all records are open EXCEPT the following - or list the kinds of records the public does have a right to inspect. The scope and reach of state open-records laws, which sometimes are known are public-records laws or state freedom-of-information laws, will vary from state to state. Important to know what the law is in your state (Excellent online resources relating to state open-records laws: Reporters Committee for Freedom of the Press [Open Government Guide], National Freedom of Information Coalition [State FOI Laws]) In addition, there are many organizations across the country that concentrate primarily on the open-records laws of a specific state. Some of these organizations, which include both privately funded groups and government entities, have helpful handbooks for journalists summarizing the open-records statutes and open-meetings laws in a given state. Some examples of organizations for different states: Colorado: Colorado Freedom of Information Coalition; CT: Freedom of Information Commission; Florida: First Amendment Foundation; NY: Committee on Open Government; PA: Pennsylvania Freedom of Information Coalition; TX: Freedom of Information Foundation of Texas Most state laws permit inspection of records by any person, but a few limit access to public records to residents of the state. The reason people want to see a record is normally considered immaterial when determining whether they can gain access to the record. The freedom-of-information laws provide access to records held by public agencies in the state, and normally these statutes provide a broad definition of these agencies. Normally included are state offices, departments, divisions, bureaus, boards and commissions. Records kept by local government agencies (cities, counties, villages) also included, as are those kept by school districts, public utilities and municipal corporations. In some states these laws also apply to records held by the governor. Frequently these branches of government have established their own policies regarding access to records. State laws follow either a liberal or conservative definition of a public record. All records possessed by an agency are deemed to be public record in those states with a liberal definition of a public record. But some state laws are more conservative and provide access only to those records that required to be kept by law. Is it permissible for one state to prevent citizens of other states from enjoying the same right of access to public records that the state affords its own citizens? YES. Question resolved in Supreme Court in McBurney v. Young (2013). The Virginia FOIA, provides "all public records shall be open to inspection and copying by any citizens of the Commonwealth" but it grants no such right to non-Virginians. Only Virginians can use Virginia's FOIA law. A handful of other states have similar citizens-only-open-records laws. In upholding Virginia's law and ejecting challenge brought against it by citizens of Rhode Island and California, Justice Alito wrote for unanimous Supreme Court "the distinction the statutes makes between citizens and non-citizens has a distinctly non-protectionist aim. The stare FOIA essentially represents a mechanism by which those who ultimately hold sovereign power (the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power." Alito added "the provision limiting the use of the state FOIA to Virginia citizens recognizes that VA taxpayers foot the bill for the fixed costs underlying recordkeeping in the Commonwealth." The Court concluded Virginia's FOIA law didn't violate the Privileges and Immunities Clause of the U.S. Constitution. All state freedom-of-information laws provide exemptions to disclosure. Agencies may withhold material that falls under an exemption in some states; agencies must withhold this information in other states. Six common exemptions to state open-records laws: 1. Information classified as confidential by state or federal law 2. Law enforcement and investigatory information 3. Trade secrets and commercial information 4. Preliminary departmental memorandums (working papers) 5. Personal privacy information 6. Information relating to litigation against a public body Can state and local governments copyright certain records they create and maintain in order to stop their widespread distribution under freedom-of-information laws? Issue arose in South Carolina in 2008 when state's highest court in Seago v. Horry County considered whether further dissemination of public documents obtained pursuant to the South Carolina FOIA "may be restricted where the government entity claims the information is copyright-protected under the federal copyright law" The dispute centered on company that collected electronic mapping data, including digital photographic maps, from various government entities (in this case Horry County) and then charged customers a fee for accessing such data on its Web site. Horry County had copyrighted parts of its mapping data. In ruling in favor of the county, Supreme Court of South Carolina held "while public information must be granted pursuant to FOIA, a public entity may restrict further commercial distribution of the information pursuant to a copyright" Box: 911 telephone recordings and the sounds of death There is a growing movement in some states to exempt from their open-records laws the tapes and/or transcripts of 911 emergency telephone calls. Why? Because 911 call might include a person's dying words or terrified response as they are being attacked or otherwise is in a state of danger. Critics of the release of such tapes contend they feed sensational and voyeuristic tastes, especially when recordings are played on TV and then uploaded to the Internet where anyone can listen to them. Alabama amended its open-records laws in 2010 to prohibit the release of audio recordings of 911 calls unless a judge first determines the public's interest in disclosure outweighs the privacy interests of the person making the call. The Alabama law applies only to audio recordings; transcripts of the calls are available for a "reasonable fee" to cover costs of the transcription. Access proponents, however, counter that the public needs to hear 911 calls to determine how effectively government agencies such as law enforcement respond to such situations. This battle will continue to play out in the coming years Obtaining copies of state records can sometimes be an expensive proposition. Example: Police department in Milwaukee was going to require the Milwaukee Journal Sentinel in 2010 to prepay more than $3,500 to fulfill the newspaper's request for certain police incident reports. The department claimed there were more than 500 such reports and that significant time needed to be spent to redact (black out) confidential information from them before they could be released. The police department was going to charge the newspaper more than $40 an hour for labor and 25 cents per page copied. The Milwaukee Journal Sentinel sued the Milwaukee PD, claiming it violated the WI Open Records Law by charging it excessive fees for the opportunity to inspect and copy the records it requested and by imposing arbitrary limits on the amount of time staff could spend complying with the paper's request. The Wisconsin Supreme Court unanimously ruled that information should be released to the newspaper without having to pay for the redactions. Sometimes lawsuits, it seems, are necessary to bring fees down. When records are produced, the charges may be steep. Charging a fee for producing a public record isn't common, though it is certainly not unheard of. In Rhode Island, agencies can charge up to $15 an hour for the search or retrieval of documents, but the first hour of such costs within a 30-day time period is free. Colorado, on the other hand, charges $33.58 an hour. 2014, a West Virginia court allowed public bodies in the state to charge for search and retrieval, though the state legislature banned such fees in 2015. In 2021, the Missouri Supreme Court ruled public governmental bodies in that state cannot charge fees for the time attorneys spend reviewing or redacting documents prior to their release. The court held the MO Sunshine Law allows officials to charge requesters for staff time spent locating records - but not attorney review of the records. Violating a state's open-records law can prove very expensive for government entities. 2021, Mississippi Ethics Commission ordered the City of Jackson to pay more than $170k in legal fees incurred by WLBT-TV (owned by GMG) as it battled for public records. Gray Media Group filed an ethics complaint with the commission alleging the city repeatedly failed to respond in a timely way to public records requests the station filed under the MS Public Records Act. The station requested various reports and communications records for the Jackson Police Department. In the most egregious example, the city waited almost 600 days to produce phone and text logs to WLBT, though MS law requires a public body to respond within 7 business days. In its ruling, the commission said complying with the public records act "is a fundamental obligation of municipal government just like police protection, fire protection, water and sewer services. Without transparency in government, there can be no confidence among the governed, and without the support of the community, those in government cannot succeed" The Privatization of Public Government One of the challenges facing the press today results from the trend of private companies taking over what has been traditionally regarded as government business. For-profit and non-profit organizations are replacing government in operating public schools, jails and prisons, state and local welfare agencies and many other state services. These private agencies not generally regarded to have the same responsibilities as public agencies to maintain open records or hold meetings in public. Example: 2006, Ohio Supreme Court Oriana House, Inc. v. Montgomery, a private corporation called Oriana House, which contracted with Summit County, OH, to operate its alternative jail sentencing and rehabilitation programs was not the "functional equivalent" of a government agency and thus was not subject to Ohio Public Records Act. By 4-3 decision, OH's high court found Oriana House exempt, even though Oriana House performed duties historically left to government agencies and despite fact it received all of Summit County's funds for running for community-based correctional facilities and programs. The majority emphasized instead the fact "there was no evidence that any government entity controls the day-to-day operations of Oriana House" and "Oriana House was created as a private, non-profit corporation. It was not established by a government entity" For journalists and access advocates, the majority concluded "a private business doesn't open its records to public scrutiny merely by performing services on behalf of the state or a municipal government. It ought to be difficult for someone to compel a private entity to adhere to the dictates of the Public Records Act" Though the OH ruling is not access friendly, some courts have held differently in similar scenarios. A TN judge ruled in 2008 a private prison company was the functional equivalent of a government agency and was subject to TN's open-records law. The judge found it significant the state's constitution makes prison maintenance a state function. The private company, Corrections Corporation of America (CCA), operates more than half-dozen detention facilities in TN. In 2009, TN Court of Appeals in Friedman v. Corrections Corporation of America upheld the decision. Observed the state could not delegate away to a private entity its responsibilities. And the Supreme Court of WI held in 2008 municipalities may not avoid liability under WI's open-records law by contracting with an independent contractor assessor for the collection and custody of its property assessment records, and by then directing any requester of those records to such an assessor. Summary All states have laws that govern access to public meetings and public records. Good state open-meetings laws have strong legislative declarations in support of public meetings, specifically define a public meeting by listing the number of members who must gather to constitute a meeting and declare void all actions taken during a meeting that was improperly closed to the public. Most laws provide for closed sessions to discuss such matters as personnel actions, real estate transactions and litigation. State open-records laws tend to mirror the federal law. Both state and local agencies are governed by the laws, which apply to most governmental bodies except the legislature and the courts. Most state laws govern all records kept by these agencies, but a few are applicable only to records that are required to be kept by law. Exemptions to state open-records laws include material specifically excluded by other statutes, law enforcement investigatory information, working papers and highly personal information. Most laws provide for access to the judicial system in case a request for data is rejected, but both NY and CT have stablished commissions to act as arbiters in these matters, and Florida has adopted a constitutional amendment that governs access throughout state government. A major concern facing both journalists and the public today is the growing use of private businesses to carry out government functions.

Exemption 5: Working Papers/Discovery In... and in...-agency memorandums and letters which would not be available by law to a party other than an agency in l... with the agency This exemption shields two kinds of materials from disclosure: 1. W... ...: studies, reports, memoranda and other sorts of documents prepared and circulated to assist government personnel to make a f... r..., an a... p..., or a d... of some kind -For Exemption 5 to apply to such documents used in the d...-... process of an agency the documents must typically be p...-... (used ... a decision is made by the agency) and d... (documents play a d... part in the d... process of making recommendations and d...) Courts call this part of Exemption 5 the d...-p... exemption, it generally shields from disclosure records used in a... or in... d...-m... processes like recommendations, advisory opinions, draft documents, proposals, suggestions, other subjective documents reflecting personal opinions of the writer Sometimes documents generated during the d... process to help formulate p... either become expressly adopted by an agency in its f... p... or are incorporated into a f... p... by r... to them (repeatedly refer to a memorandum to explain its policy or when the policy cites the memorandum for instance) Supreme Court ruled Exemption 5 cannot shield such documents. Once the decision has been made, public disclosure of these materials cannot damage the d...-m... process Example: A p...-... document used by a government agency when d... about a final decision: -Federal district court ruled p... autopsy reports on soldiers killed in Iraq and Afghanistan fall within scope of protection of Exemption 5. The court noted "p... autopsy reports are d... of the f... autopsy reports" The court accepted the government's contention that info in a p... autopsy report is incomplete and often later altered in the f... autopsy report to reflect a different cause of death determination U.S. Fish and Wildlife Service v. Sierra Club (2021) -Supreme Court ruled Exemption 5 does not require federal agencies to release in-... d... o... that do not result in a f... r... or a... d... -Records prepared by U.S. Fish and Wildlife Service and National Marine Fisheries Service (services) for the EPA. The EPA proposed regulations for cooling water intakes. Because such structures risked harming aquatic life, federal law required EPA consult the services before proceeding. The goal of the consultation was to prepare "an official 'biological opinion' on whether the agency's proposal will jeopardize the existence of threatened or endangered species" The services completed d... biological o... back in December 2013. But the services didn't a... those d... or s... them to the EPA. -Consultation continued with EPA, and in 2014 the EPA sent the services revised regulations. In their f... "biological opinion" in 2014, services concluded EPA's revised regulations were unlikely to harm any protected species When the Sierra Club submitted a FOIA request for records related to the services' consultation with the EPA, the services invoked Exemption 5 for 2013 d... biological opinions. U.S. Supreme Court agreed with that position in its opinion Justice Barrett said the d...-p... exemption "distinguishes between p...-d..., d... documents, which are exempt from disclosure, and documents reflecting a f... agency decision and the reasons supporting it, which are not" "A document is not f... solely because n... e... follows it. Sometimes a proposal dies on the vine. That happens in d... - some ideas are d... "If an agency has hidden a functionally f... decision in d... form, the d... p... privilege will not apply" But the Court concluded that was not the case here: The Court said the draft biological opinions reflected a "p... view - not a f... decision" 2. Also protected from public disclosure is material that would not normally be open to inspection in a c... l... p... - D... The d... process is a part of all litigation. Through d... one party is able to gain access to evidence, testimony, and other material possessed by the other party. But some kinds of material are not accessible through this process! -When a p... p... consults an ... and discusses matters relevant to a lawsuit, what is said during those conversations is ...! The ...-... privilege protects communications between a ... and their ... that are intended to be and were in fact kept ... for the purpose of obtaining or providing legal assistance! Protects most ... communications between g... ... and their ... made for purpose of obtaining or providing legal advice Example: Supreme Court l... scope of Exemption 5 when it said communications between a group of Native Americans and the BIA (government agency representing U.S. in nation's relationship with tribes) ... covered by Exemption 5 Dispute about allocation of water from Klamath River Basin in OR/CA. Group of irrigators filed series of FOIA requests to see copies of correspondence on such water issues Government rejected the request, claiming because of the s... ... between tribes and BIA, records should be kept protected under Exemption 5 in much same way the correspondence between l... and ... is protected -Supreme Court ... ... this argument! -Exceptions under FOIA are to be applied ... -Also ... the notion the communication between tribes and BIA are comparable to communication of an ... and an outside c... [in... or in...-... memoranda] 3. EXECUTIVE PRIVILEGE DOCTRINE -Related to the President -Also presidential communications privilege Three points are key: 1. These privileges are ... ... 2. While the "E... ... of the ..." is an agency subject to FOIA, the "... of the ..." (...'s im... key a... like chief of staff and WH counsel who have significant responsibility for investigating and formulating presidential a...) is not subject to FOIA 3. The confines of the presidential communications privileges are construed ..., balancing a president's need for c... and frank a... with the obligations of o... g... Example: Federal court held Exemption 5's ... ... p... protected from disclosure 68 pages of emails between officials in WH and DOJ relating to termination and dismissal of several U.S. attorneys while Gonzales was Attorney General DOJ claimed such d...-m... materials were protected because the ... ... p... sweeps up both f... and p...-... matters, as well as p...-d... ones, and it extends to p...'s im... ... and documents not actually r... by the p... In 2016, FOIA amended to l... Exemption 5 - ability of agencies to withhold "d... p..." documents is now limited to ... years!

5. Working Papers/Discovery Exemption #5: Interagency and intra-agency memorandums and letters which would not be available by law to a party other than an agency in litigation with the agency. This exemption shields two kinds of materials from disclosure: 1. Working papers: studies, reports, memoranda and other sorts of documents that are prepared and circulated to assist government personnel to make a final report, an agency policy or a decision of some kind. For Exemption 5 to apply to such documents used in the decision-making process of an agency, the documents typically must be (1) pre-decisional (used before a decision is made by the agency) and (2) deliberative (documents must play a direct part in the deliberative process of making recommendations and decisions). Courts refer to this part of Exemption 5 as the deliberative-process exemption, hold it generally shields from disclosure records used in agency or interagency decision-making processes such as: -> Recommendations -> Advisory opinions -> Draft documents -> Proposals -> Suggestions and -> Other subjective documents reflecting personal opinions of the writer Sometimes documents generated during the deliberative process to help formulate a policy either become expressly adopted by an agency as its final policy or are incorporated into a final policy by reference to them (such as when a government agency repeatedly refers to a memorandum to explain its policy or when the policy cites the memorandum). The Supreme Court ruled in 1975 Exemption 5 cannot be used to shield such documents. Once the decision has been made, the court said, public disclosure of these materials cannot damage the decision-making process. What's an example of a pre-decisional document used by a government agency when deliberating about a final decision? 2013, federal district court held in Charles v. Office of the Armed Forces Medical Examiner that preliminary autopsy reports on soldiers killed in Iraq and Afghanistan fall within scope of protection of Exemption 5. The court noted "preliminary autopsy reports are drafts of the final autopsy reports." The court accepted the government's contention that info in a preliminary autopsy report is incomplete and often later altered in the final autopsy report to reflect a different cause of death determination. In 2021 case U.S. Fish and Wildlife Service v. Sierra Club, U.S. Supreme Court ruled Exemption 5 doesn't require federal agencies to release in-house draft opinions that do not result in a final regulation or agency decision. The case involved records prepared by U.S. Fish and Wildlife Service and National Marine Fisheries Service for the EPA. The EPA proposed regulations for structures known as cooling water intakes, which withdraw volumes of water from the ocean or other water bodies to cool down industrial equipment. Because such structures risked harming aquatic life, federal law required EPA consult the U.S. Fish and Wildlife Service and National Marine Fisheries Service before proceeding. The goal of the consultation was to prepare "an official 'biological opinion' on whether the agency's proposal will jeopardize the continued existence of threatened or endangered species" The services completed draft biological opinions back in December 2013 that concluded the proposed EPA regulations they were reviewing at the time were likely to jeopardize certain protected species. But the services didn't approve those drafts or send them to the EPA. Instead, consultation continued with EPA, and in 2014 the EPA sent the services revised regulations. In their final "biological opinion" in 2014, services concluded EPA's revised regulations were unlikely to harm any protected species. When the Sierra Club submitted a FOIA request for records related to the services' consultation with the EPA, the services invoked Exemption 5 for 2013 draft biological opinions. U.S. Supreme Court agreed with that position in its opinion. Justice Barrett said the deliberative-process exemption "distinguishes between pre-decisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not" Justice Barrett recognized it is not always self-evident whether a document represents an agency's final decision, "but one thing is clear: A document is not final solely because nothing else follows it. Sometimes a proposal dies on the vine. That happens in deliberations - some ideas are discarded. Yet documents discussing such dead-end ideas can hardly be described as reflecting the agency's chosen course. What matters is not whether a document is last in line, but whether it communicates a policy a policy on which the agency has settled" Court ruled determining whether an agency's position is final for purposes of Exemption 5 is "a functional rather than formal inquiry. If the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply." But the Court concluded that was not the case here: The Court said the draft biological opinions reflected a "preliminary view - not a final decision - about the likely effect of the EPA's proposed rule on endangered species" 2. The second part of the exemption protects from public disclosure material that would not normally be open to inspection in a civil legal proceeding. Something called the discovery process a part of all litigation. Through discovery one party is able to gain access to evidence, testimony, and other kinds of material possessed by the other party. But some kinds of material are not accessible through this discovery process. When a private person consults an attorney and discusses matters relevant to a lawsuit, what is said during those conversations is confidential. The attorney-client privilege protects communications between a client and their attorney that are intended to be, and in fact were, kept confidential for the purpose of obtaining or providing legal assistance. It thus protects most confidential communications between government attorneys and their clients made for the purpose of obtaining or providing legal advice. 2001, Supreme Court limited the scope of Exemption 5 when it said communications between a group of Native American tribes and the Bureau of Indian Affairs, a government agency that represents the U.S. in the nation's relationships with the tribes, was not covered by Exemption 5. The issue focused on dispute about the allocation of water from the Klamath River Basin in OR and northern CA. A group of irrigators filed a series of FOIA requests to see copies of correspondence between the tribes and BIA regarding water issues. The government rejected the request, claiming because of the special relationship between the tribes and BIA, records should be kept protected under Exemption 5 in much the same way the correspondence between lawyers and clients is protected. The Supreme Court, in unanimous ruling, rejected this argument. Justice Souter, though there are surely exceptions to the general rule of public disclosure mandated by the FOIA these exceptions are to be applied narrowly. The Court also rejected the notion the communication between the tribes and BIA were comparable to the communication between an agency and an outside consultant, material sometimes regarded as interagency or intra-agency memoranda. Exemption 5 also includes an executive privilege doctrine related to the president, including a presidential communications privilege. Details are complex, but three points are key: 1. These privileges aren't absolute 2. While the "Executive Office of the President" is an agency subject to FOIA, the "Office of the President" (president's immediate key advisers such as chief of staff and WH counsel, who have significant responsibility for investigating and formulating presidential advice) is not subject to FOIA 3. As an appellate court observed in 2004, the confines of the presidential communications privileges are construed narrowly, balancing a president's needs for confidentiality and frank advice with the obligations of open government 2008, federal court held Exemption 5's presidential communications privilege protected from disclosure 68 pages of emails between officials in WH and Department of Justice relating to controversial termination and dismissal of several U.S. attorneys while Gonzales was Attorney General. The Justice Department claimed emails pertained to matters such as responding to an upcoming Congressional hearing, formulating official responses to inquiries from outside the Executive Branch, suggesting a plan of action for the appointment of a U.S. Attorney or conferring on issues arising from such appointments, recommending revisions to documents, and planning for the hiring of new Department personnel. Such decision making materials were protected because the presidential communications privilege sweeps up both final and post-decisional matters, as well as pre-deliberative ones, and it extends to president's immediate advisers and documents not actually reviewed by the president. In 2016, FOIA amended to limit Exemption 5 - ability of agencies to withhold "deliberative process" documents is now limited to 25 years!

Three basic legal conceptions of privacy Invasion of privacy is an umbrella term with three basic rights embedded 1. Privacy of ... -Private and personal d...-... by an ... ... free from government interference and intrusion Example cases: -Griswold v. Connecticut (contraceptive use) -Roe v. Wade (abortion access, since overturned but rooted in right to privacy) -Lawrence v. Texas (sodomy laws - consensual sexual acts with fellow adults in private home) -Cases to do with sex, sexuality - rooted in sense of privacy and protection from invasion of privacy -Not commonly related to media 2. Privacy of ... -Private people possess a ... ... of privacy that someone else cannot intrude or trespass ('t... s...') -Example: Permission to access a ... (first blank) - recording in someone's home, cannot enter ... when reporting 3. Privacy of ... -Some ... and ... about oneself that should not be revealed either to or by others OR you should be able to control what other people do with ... about you -Example: Social media and ... collection online - using Google data to advertise to you -Businesses of gathering ... and selling it -Increasingly salient issue and growth in law -Also protect ... about oneself from journalists Sources of Privacy Law 1. ... ... -... ... does not mention the word 'privacy,' but some state ... do (Georgia)! U.S. Supreme Court recognized an ... ... ... to privacy -... ...: right to be free from unreasonable search and seizure of property (Basis for privacy of space) - government needs to have a good reason, like a permit -... ...: privacy in one's home, papers, and effects 2. ... ... -Created by state or federal ... and signed by either ... or ... FEDERAL: Family Educational Rights and Privacy Act (FERPA) - cannot tell grades to parents who ask Health Insurance Portability and Accountability Act (HIPAA) - protect medical information from being shared without permission STATE: Anti-paparazzi laws (California - Hollywood, celebrities live there) - unwanted, aggressive photography 3. ... ... -Federal Trade Commission (FTC) especially attuned to providing privacy rights - especially on companies gathering information for business purposes (how much information businesses are allowed to take, aggregate/disaggregate that information, etc. - Google data and tailoring ads example) 4. ... ... -4 torts/causes of lawsuits Common Law -Four torts (or areas of privacy law) -These are causes of action (legal theories) 1. ... of one's ... or ... for ... purposes 2. ... upon an individual's ... or ... 3. ... ... of ... ... about an individual 4. Publishing material that puts an individual in a ... ... #4: Most courts do not accept this tort due to the constitutionalization of defamation law through Times v. Sullivan (prioritize that instead). Try to file a defamation lawsuit instead

1. Privacy of autonomy -Decision-making by an autonomous individual 2. Privacy of space -Geographical zone -Territorial solitude -Space, space 3. Privacy of information -Data and facts, information -Data -Information -Information 1. Constitutional law -U.S. Constitution, constitutions -Implied constitutional right -4th Amendment -14th Amendment 2. Statutory law -Legislative, governor/president 3. Administrative law 4. Common law Four torts (or areas of privacy law) 1. Appropriation of one's name or likeness for trade purposes 2. Intrusion upon an individual's solitude or seclusion 3. Public disclosure of private facts about an individual 4. Publishing material that puts an individual in a false light

Gathering Information Sources of Law related to gathering information [journalistic context] 1. ... Law -Provides only ... ... to government ... and to ... of ... ... Only certain court cases, rulings, and proceedings 2. ... Law (... ...) -Passed before ... ... was a ... function of the ... [men owned printing presses - posting gossip at the time] -Free press does not guarantee ... or ... r... [No ... ... to access information] Founders did not have in mind a m... ...! The ... does not define who a ... is - so anyone can use these resources in most cases to take advantage of laws/rules 3. ... Law (state and federal) FOIA [federal] Government in Sunshine Act (1976) [federal] State open-/public-records/freedom-of-information laws and open-meetings laws Right to Interview? The Constitution did not say a thing about this when it was passed [remember it doesn't even define who a ... is!], President Jackson was the first to sit in a formal interview for the press (successor of Lincoln) ...! -Government officials can ... to grant ...-on-... ... access to ... reporters, and can ... ... entirely -Government officials can NOT s... ... access to ... reporters from ... ... ... that are otherwise open to ... members of the media Example: Stripping of press credentials in an unusual way [Acosta kicked out from Trump WH press conference, had his credentials unconstitutionally stripped [no fair notice, 5th Amendment violation] Can the president's twitter account block you? Constitutional protection? Not fully decided Encounters with the Police -Failure to Obey Lawful Orders ... ... does not give press ... ... to access ... scenes or protect reporters from ... and ... ... changes when they fail to obey lawful commands of police Example: Police orders a dispersal order - a journalist can still be subject to an ... [seen as unlawful assembly, not protected] -Statutory exceptions in ..., ..., .... (more protection in these states) -Filming Police in Public Places -Growing consensus that ... ... protects this! Example: If at a protest or ... scene, on public property and film police - most courts would say you are within your legal right to do so - are ways this right can get ... (may take you in, you file a lawsuit for relief) Relief is often sought through ... No magic wand, still in contention Journalists receive no ... ..., every ... is treated the same by the law! Every ... has the right to film police in a public place [in most jurisdictions] and no right to fail to obey police orders! 1. Trespassing ..., ... (i.e., without ...) entry onto ... that is occupied or possessed by ... -... p... and/or ... l... [may get sued] -... is a defense [... ... is best!] -Careful not to exceed scope of ...! Example: Loved one dies, go to the home of a family member. Authorized to come in their home. Let's say they ask for tea and you accept. While they make tea, you cannot then go snoop around in the loved one's bedroom. Can get sued for trespass! I allowed you into my home, not to snoop around in their room! Other Risks 2. Harassment Systematic and/or continued ... and ... ... of one party or a group, including ... and ... Example: If a source denies an interview and I then show up to their workplace or their house because they denied me an interview 3. Fraud ... ... statement of a m... or s... fact that is communicated with the intent to ... the plaintiff to ... on that statement and that does, in fact, ... the plaintiff to reasonably ... upon it to the plaintiff's ... or ... You cannot ... yourself or your motives! Example: ... about who you are to get an interview or to gather information [The Food Lion case], should ... identify and represent yourself! Another aspect of fraud that is not protected: Impersonating ... ... is illegal! Example: "I'm an officer, so I can enter this disaster scene!" If the police set a yellow line/perimeter - have to listen to that! [Lawful Order]

Sources of Law Common Law -Provides only bare access to government documents and to meetings of public agencies Constitutional Law (First Amendment) -Passed before news gathering was a primary function of the press -Free press does not guarantee effective or accurate reporting [no special right] Moden journalist! Constitution, journalist Statutory Law (state and federal) Right to Interview? -No. -Government officials can refuse to grant one-on-one interview access to specific reporters, and can refuse comment entirely -Government officials can NOT selectively deny access to specific reporters from public press conferences that are otherwise open to all members of the media Encounters with the Police Failure to Obey Lawful Orders -First Amendment does not give press special rights to access disaster scenes or protect reporters from arrest and disorderly conduct changes when they fail to obey lawful commands of police. Arrest -Statutory exceptions in California, Ohio, Oregon. Filming Police in Public Places -Growing consensus that First Amendment protects this. Abused Lawsuit Special rights, citizen. Citizen Trespassing Intentional, unauthorized (i.e., without consent) entry onto land that is occupied or possessed by another -Criminal prosecution and/or civil liability -Consent is a defense [written consent] -Careful not to exceed scope of consent Harassment -Systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands Fraud -Knowingly false statement of a material or significant fact that is communicated with the intent to induce the plaintiff to rely on that statement and that does, in fact, induce the plaintiff to reasonably rely upon it to the plaintiff's harm or injury Misrepresent, lying, honestly -Impersonating government officials is illegal

Privacy Protection Act of 1980 Provides additional protections against ... and ... of materials intended for ... The law restricts the government from ... or ... "any ... p... m..." or "d... m..." from someone "r... believed to have a purpose to d... to the ... a newspaper, book, broadcast, or other similar form of p.. ..." If law enforcement attempts to ... or ... journalists' ... ... or ... materials, journalists should make clear they are ... of the ..., intending to d... materials to the ..., and are therefore protected by the Privacy Protection Act (in addition to ... ...!) Whether the police were (or should have been) on n... that an individuals intends to ... materials to the ... can play a significant role in any l... to challenge the ... of materials. Wearing ... ... and carrying a ... and v... may be sufficient to put law enforcement on ... of an intent to ...! The Act includes an exception where there is ... ... to believe the person possessing the materials has c... or is c... a ... o... to which the materials ...! In one case, a court found police did not violate the Act when they searched the home and seized the equipment of a photojournalist whose actions (not displaying ... ..., behaving similarly to ..., and fleeing with ... when v... occurred) supported the conclusion that she "conspired with the group of vandals or aided and abetted the offenses committed by the group." Police may also seize materials, if they act in ... ..., to ensure s... during ... but only if journalists receive their equipment back within a ... ... of ...! Example: California court dismissed a journalist's claim under the Act when law enforcement seized his camera and notebook during an arrest for s...-... s.... In contrast, claims made under the Act tend to be resolved in favor of a journalist where law enforcement s... in... with the journalist's n... and r... a... or ... returns the journalist's property! Example: An Oregon court found a citizen journalist adequately stated a claim under the Act when an officer in... with her attempt to livestream an arrest using her cellphone, because the officer grabbed her phone, terminating the broadcast, and ordered her to show him the video

Privacy Protection Act of 1980 The Privacy Protection Act of 1980 provides additional protections against searches and seizures of materials intended for publication. This law restricts the government from searching or seizing "any work product materials" [materials that are (1) prepared, produced, authored, or created by the person in possession of the materials or by another person; (2) are possessed for the purposes of communicating such materials to the public; (3) include mental impressions, conclusions, opinions, or theories of the person who prepared, produced, authored, or created such material] or "documentary materials" [materials upon which information is recorded like written or printed materials, photographs, motion picture films, negatives, video tapes, audio tapes, and other mechanically, magnetically, or electronically recorded cards, tapes, or discs. May not be contraband, fruits of a crime, or otherwise possessed for a criminal purpose] from someone "reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication" If law enforcement attempts to search or seize journalists' work product or documentary materials, journalists should make clear they are members of the press, intend to disseminate materials to the public, and are therefore protected by the Privacy Protection Act (in addition to the Fourth Amendment)! Whether the police were (or should have been) on notice that an individual intends to disseminate materials to the public can play a significant factor in any lawsuits to challenge the seizure of materials. Wearing press credentials and carrying a camera and videotapes may be sufficient to put law enforcement on notice of an intent to disseminate! The Act includes an exception where there is probable cause to believe the person possessing the materials has committed or is committing a criminal offense to which the materials relate. In one case, a court found police did not violate the Act when they searched the home and seized the equipment of a photojournalist whose actions (not displaying press credentials, behaving similarly to protestors, and fleeing with protestors when vandalism occurred) supported the conclusion that she "conspired with the group of vandals or aided and abetted [assisted] the offenses committed by the group." Police may also seize materials, if they act in good faith, to ensure safekeeping during arrest, but only if journalists receive their equipment back within a reasonable period of time! Example: California court dismissed a journalist's claim under the Act when law enforcement seized his camera and notebook during an arrest for short-term safekeeping. In contrast, claimed made under the Act tend to be resolved in favor of a journalist where law enforcement substantially interferes with the journalist's newsgathering and reporting abilities or never returns the journalist's property. Example: An Oregon court found a citizen journalist adequately stated a claim under the Act when an officer interfered with her attempt to livestream an arrest using her cellphone, because the officer grabbed her phone, terminating the broadcast, and ordered her to show him the video.

Regulation of Nonobscene Erotic Material -Battles over obscenity in U.S. have gone on for almost two centuries, but as the Supreme Court ... its definition of legal obscenity during last 50 years, more and more pressure has been applied by ... g... and even some ... a... to stop the flow of nonobscene, adult material that probably would have been considered legally obscene half a century ago but is protected by the ... ... today -This has become the primary battleground in the fight over the distribution and exhibition of adult, sexually explicit material (Magazines like Hustler, rap music, homoerotic art exhibits, adult videos, sexually oriented sites are among variety of mass media targeted for c... and even ... in various parts of nation) -This material though ... to some people, generally enjoys the full protection of the ... ... because it does not qualify as ... under the ... test! Sexually Oriented Businesses (SOBs) -Strip clubs, adult video stores and adult theaters -Subject to two types of local law 1. ... regulations 2. ... ... regulations To the extent speech products sold in these establishments are not ... under ..., and to the extent the U.S. Supreme Court has held ... d... is "... ... that is entitled to some quantum of protection under the ... ...", the ... of SOBs and the regulation of the ... inside them raise constitutional issues of free expression -Federal and state courts hear at least a dozen challenges each year to these laws #1 ... Regulations When cities ... SOBs they use one of two approaches: 1. Cluster the businesses into a ... area (...-... districts or ... zones) 2. ... them across the community, usually to r... ... areas away from ... and most r... areas (Renton v. Playtime Theatres, Inc. - OK - prohibiting adult theatres from locating within 1000 feet of any ... zone, f... dwelling, c..., ..., or ...) These zoning tactics are OK if criteria is met: The Supreme Court allows such zoning laws and subjects them to a r... form of ... ... if they are designed to DECREASE and REDUCE so-called ... ... of SOBs -... ... are typically problems that may go on outside an SOB such as increased ... rate, decreased ... v..., and decreased ... of ...; others might include the spread of ... inside an SOB among dancers and patrons If a municipality proves it is targeting such negative ... ... caused by the SOB and is not targeting the actual ... inside the SOB, then the ordinance is considered c... ... and the municipality simply must prove the zoning law: 1. Serves a ... government ... AND 2. Does not completely ... all SOBs in the municipality and unreasonably limits a... ... of c... Notice how this approximates ... s... standard of review for c...-... ..., ... and ... restrictions! -7th Circuit, "regulations on SOBs are nearly always reviewed under ... s... as c...-... regulations" Rarely subject to ... scrutiny. Local governments are usually smart enough to invoke '... ...' in their regulation of adult businesses." -While municipalities are required to rely on some p...-e... evidence of negative ... ... that must support the municipality's rationale for its ordinance, this is not a burdensome task -Example: municipalities are not required to conduct their own ... about negative ... ... in their communities and they are not required to submit e... ... of alleged harms caused by SOBs -Although a municipality cannot rationalize the restriction p... ... (... the adoption of a zoning regulation), it is not necessary the municipality demonstrate these ... ... by evidence specifically studying its own unique circumstances While courts usually offer no hesitation over finding municipalities have a ... ... in curbing the ... ... associated with SOBs, problems can occur! -Federal court issued restraining order against a Duluth, Minn., ordinance that limited the hours of operation of SOBs Owners of SOBs may counter such evidence, but this is a time-consuming and expensive task in terms of hiring ... w... and commissioning their own ..., and the evidence must cast direct doubt on that offered by the municipality On the requirement of not completely ... all SOBs and unreasonably limiting the ... in the community in which they can be located, courts are clear the land available for SOBs does not need to be the most ... f... and there does not need to be much ... available! However, a municipality cannot enact a zoning law that provides ... available locations than there are p... o... SOBs in the municipality, and an SOB forced to move away by new zoning law must have a... o... for r...! #2 ... ... Regulations In addition to zoning SOBs, many municipalities enact laws affecting the ... ... that takes place inside these businesses -... d... is considered speech by the U.S. Supreme Court, yet it and other courts have allowed cities to adopt m... c... requirements since these interfere in a very minor way with the e... ... conveyed by the d... ("Any effect on the overall expression is de minimis") -Municipalities also allowed to adopt reasonable rules designed to prevent ... ... and c... such lap dances between ... and ...; typical efforts include: a. Minimum distance requirements between ... and ... b. Stage height requirements c. Railing requirements around stages d. Rules against direct tipping e. Minimum levels of lighting f. Rules prohibiting doors and partitions on booths and VIP rooms Restrictions affecting ... ... inside SOBs also subject to ... s... review if they target negative ... ... on public health and safety such as spread of STDs, lewdness and indecency All the government needs to prove is: 1. The regulations serve a ... government ... unrelated to the ... of s... AND 2. The regulations are ... t... (not substantially b... than ... to serve the ...) Example: 6th Circuit applied this ... s... standard and upheld a Kenton County, KY ordinance that requires dancers to stay at least five feet away from areas of an SOB occupied by customers for at least one hour after they perform seminude on stage -This ordinance was aimed at reducing the ... ... of p..., which sometimes arises when performers sit down next to customers immediately after dancing and ask the customers to buy them "conversation drinks" that in turn sometimes lead to ... a... -Observing the ordinance restricts "only those dancers performing on a particular night and restricts them only for an hour after their performances" the appellate court reasoned that Kenton County has "targeted contact between adult entertainers and customers that created a risk for ... It has done so in a manner that substantially preserves the ability of those affected to communicate with each other, though in a less physical way than they could previously. We thus conclude the provision satisfies ... s..." What about banning alcohol inside SOBs? -11th Circuit in upheld a Fulton County, GA statute prohibiting the sale, possession and consumption of alcohol in SOBs -Fulton County claimed it was concerned about the ... ... on its communities of the mixture of alcohol and live nude dancing, and it thus claimed the law should be subjected only to the ... s... standard -Sex and drug crimes occurred in and around the clubs and the neighborhood's cheap hotels, and required law enforcement and the judiciary to invest resources in combating the ... ... -5th Circuit upheld Louisiana law that require erotic dancers who perform at premises licensed to serve alcohol to be at least ... years old. Applying ... s... standard, ruled age restriction was justified by the state's ... in combating the ... ... of human trafficking and prostitution. The court ruled Louisiana "has shown that younger adults are more vulnerable to recruitment by traffickers and these vulnerabilities are exacerbated in alcohol-licensed clubs. The State has also demonstrated its regulation doesn't burden ... m... speech than is ... because it prohibits semi-nude dancing for 18-20 year-old individuals in alcohol-licensed clubs only"

Regulation of Non-obscene Erotic Material Battles over obscenity in the U.S. have gone on for almost two centuries. But as the Supreme Court narrowed its definition of legal obscenity during the past 50 years, more and more pressure has been applied by advocacy groups and even some government agencies to stop the flow of non-obscene, adult material that would probably have been considered legally obscene half a century ago but is protected by the 1A today. In many respects, this has become the primary battleground in the fight over the distribution and exhibition of adult, sexually explicit material. Magazines like Hustler and Barely Legal, rap music, homoerotic art exhibits, adult videos and sexually oriented sites on the Internet are among a variety of mass media targeted for control and even censorship in various parts of the nation. Though this material is certainly offensive to some people, it generally enjoys the full protection of the 1A because it does not qualify as obscenity under the Miller test. Here is some of these legal skirmishes... Sexually Oriented Businesses Sexually oriented businesses (SOBs) - strip clubs, adult video stores and adult theatres - are subject to two types of local laws: 1. Zoning regulations 2. Expressive conduct regulations To the extent speech products (videos and magazines) sold in these establishments are not obscene under the Miller test, and to the extent that the U.S. Supreme Court has held that nude dancing "is expressive conduct that is entitled to some quantum of protection under 1A," the zoning of SOBs and the regulation of the activities inside them raise constitutional issues of free expression. Federal and state courts hear at least a dozen challenges each year to these laws, despite the fact that many municipalities hire consulting firms like Duncan Associates to help them crafting such laws When cities zone SOBs, they use one of two approaches - clustering the businesses into a single area (red-light district or combat zone) or dispersing them across the community, usually to remote industrial areas away from schools and most residential areas. These zoning tactics are OK if certain criteria are met: The Supreme Court in Renton v. Playtime Theatres, Inc. upheld a municipal ordinance in Washington state prohibiting adult theaters from locating within 1,000 feet of any residential zone, family dwelling, church, park or school. The Supreme Court allows such zoning laws and subjects them to a relatively relaxed form of judicial scrutiny if they are designed to decrease and reduce so-called secondary effects of SOBs. Secondary effects of SOBs typically are problems that may go on outside an SOB such as increased crime rates, decreased property values and decreased quality of life. Other secondary effects may include spread of STDs inside an SOB that might result from direct contact between dancers and patrons. If a municipality proves it is targeting such negative secondary effects ostensibly caused by SOBs, and conversely, is not targeting the actual speech inside the SOB, then the ordinance is considered content neutral and the municipality simply must prove the zoning law: 1. Serves a substantial government interest and 2. Does not completely ban all SOBs in the municipality and unreasonably limit alternative avenues of communications Notice how this approximates the intermediate scrutiny standard of review for content-neutral time, place and manner restrictions! As the 7th Circuit observed in 2015, "regulations on SOBs are nearly always reviewed under intermediate scrutiny as content-neutral regulations" 7th Circuit added in same opinion that "no surprise regulations on businesses offering sexually oriented entertainment are rarely subject to strict scrutiny. Local governments are usually smart enough to invoke 'secondary effects' in their regulation of adult businesses." In applying this test, courts generally give vast deference (respect) to municipalities. While municipalities are required to rely on some pre-enactment evidence of negative secondary effects that "must fairly support the municipality's rationale for its ordinance,' this is often not a burdensome task. "The evidentiary burden to support the governmental interest is LIGHT," 5th Circuit noted in 2018 opinion. Example: municipalities are not required to conduct their own studies about negative secondary effects in their communities and they are not required to submit empirical data of alleged harms caused by SOBs. As the Supreme Court of Georgia observed in 2015, "it isn't necessary for a local government to prove the negative secondary effects it reasonably fears, based on evidence of problems experienced elsewhere, have already been experienced locally." It added that "the Constitution doesn't require governments to forestall reasonable regulation until the mess meant to be avoided is proved to have arrived and now needs to be cleaned up." Supreme Judicial Court of Mass. in 2015 similarly pointed out although a municipality "cannot rationalize the restriction POST HOC (after the adoption of a zoning regulation), it is not necessary the municipality demonstrate these secondary effects by evidence specifically studying its own unique circumstances." Furthermore, 7th Circuit wrote in 2015 municipalities have "considerable flexibility in identifying evidentiary support" and are "not required to conduct independent studies regarding undesirable secondary effects." Though owners of SOBs may counter such evidence and have done so successfully in some cases, this is a time-consuming and expensive task in terms of hiring expert witnesses and commissioning their own studies, and the evidence SOBs produce must cast direct doubt on that offered by the municipality When it comes to proving a substantial interest, courts usually find with no hesitation municipalities have a substantial interest in curbing the secondary effects associated with adult entertainment establishments. 2006, however, federal court issued restraining order against a Duluth, Minn., ordinance that limited the hours of operation of SOBs. The court noted that Duluth "presented no legislative history indicating the hours of operation restriction is necessary to combat adverse secondary effects" and concluded the plaintiff-SOB was "likely to succeed on its claim the statute was not designed to promote the substantial government interest of combating negative secondary effects" On the requirement of not completely banning all SOBs and not unreasonably limiting the space in the community in which they can be located, courts are clear that the land available for SOBs does not need to be the most commercially favorable and there does not, in fact, need to be much space available. Ordinance of Renton, Wash., was upheld by Supreme Court even though it left open just 5% of all land for SOB use. However, a municipality cannot enact a zoning law that provides for fewer available locations than there are presently operating SOBs in the municipality, and an SOB forced to move by a new zoning law must have ample opportunity for relocation In addition to zoning SOBs, many municipalities enact laws affecting the (2) expressive conduct that takes place inside these businesses. Nude dancing is considered speech by the U.S. Supreme Court, yet it and other courts have allowed cities to adopt minimal clothing requirements (G-strings, thongs, pasties) since these interfere in a very minor way with the erotic message conveyed by the dancing. As the Supreme Court stated in 2000 in upholding an Erie, Penn., ban on public nudity against a lawsuit filed by a nude dancing establishment, "any effect [of wearing G-strings and pasties] on the overall expression is de minimis (too trivial or minor to merit consideration)." Municipalities also are allowed to adopt reasonable rules designed to prevent sexual conduct and contact such as lap dances between dancers and patrons. Typical efforts include: è Minimum distance requirements between dancers and patrons è Stage height requirements è Railing requirements around stages è Rules against direct tipping è Minimum levels of lighting è Rules prohibiting doors and partitions on booths and VIP rooms Like zoning regulations, these restrictions affecting expressive conduct inside SOBs subject to intermediate scrutiny review if they target negative secondary effects on public health and safety such as the spread of STDs, lewdness, and public indecency. Assuming the authority to regulate SOBs rests with the government entity that is trying to regulate them, all the government needs to prove is that regulations: 1. Serve a substantial government interest unrelated to the content of speech AND 2. Are narrowly tailored (not substantially broader than necessary to serve the interest 2008, 6th Circuit applied this intermediate scrutiny standard and upheld a Kenton County, KY ordinance that requires dancers to stay at least five feet away from areas of an SOB occupied by customers for at least one hour after they perform seminude on stage. This post-performance, anti-commingling ordinance was aimed at reducing the secondary effect of prostitution, which Kenton County contended sometimes arises in SOBs when performers sit down next to customers immediately after dancing and ask the customers to buy them "conversation drinks" that in turn sometimes lead to sex acts. Observing the ordinance restricts "only those dancers performing on a particular night and restricts them only for an hour after their performances" the appellate court reasoned that Kenton County has "targeted contact between adult entertainers and customers that created a risk for prostitution. It has done so in a manner that substantially preserves the ability of those affected to communicate with each other, though in a less physical way than they could previously. We thus conclude the provision satisfies intermediate scrutiny" What about banning alcohol inside SOBs? The 11th Circuit in 2010 upheld a Fulton County, GA statute in Flanigan's Enterprises, Inc. v. Fulton County prohibiting the sale, possession and consumption of alcohol in SOBs. Fulton County claimed it was concerned about the secondary effects on its communities of the mixture of alcohol and live nude dancing, and it thus claimed the law should be subjected only to the intermediate scrutiny standard of review. The appellate court agreed and found the evidence offered by Fulton County in support of its law "creates a vivid image of a County in which strip clubs that served alcohol played a prominent and unwelcome role. Sex and drug crimes occurred in and around the clubs and the neighborhood's cheap hotels, and required law enforcement and the judiciary (juvenile court at least) to invest resources in combating the secondary effects. Moreover, the neighborhood themselves were dilapidated and in need of repair" 2018, 5th Circuit upheld Louisiana law that require erotic dancers who perform at premises licensed to serve alcohol to be at least 21 years old. Three dancers who at time were aged 18, 19, and 20 challenged the laws. Applying intermediate scrutiny standard of review, 5th Circuit ruled in Doe v. Landry age restriction was justified by the state's interest in combating the secondary effects of human trafficking and prostitution. The court ruled Louisiana "has shown that younger adults are more vulnerable to recruitment by traffickers and these vulnerabilities are exacerbated in alcohol-licensed clubs. The State has also demonstrated its regulation doesn't burden substantially more speech than is necessary because it prohibits semi-nude dancing for 18-20 year-old individuals in alcohol-licensed clubs only." The court pointed out those aged 18-20 could still dance in establishments that didn't sell alcohol

State Courts -Chandler v. Florida p... states to o... their c... to cameras! It doesn't r... them to do so!!! The Supreme Court did not say photographers have a ... ... right to take their equipment into c...; instead, it simply said states were free to e... with TV coverage of trials -Today, ... ... states allow some camera coverage. But the e... of coverage p..., as well as the r... journalists must follow d... greatly among the states! -In some states cameras ... be p... unless various key t... p... a...! In more states, the cameras are allowed on the discretion of the ...! If a participant o... to the admission of cameras to the c..., the press must h... this o... and refrain from photographing/recording th... in...! -And ... can and do require cameras be t... o... during the presention of certain k... of e..., such as gory crime scene photos. Most states have adopted guidelines that establish the n... of s... and m... p... c... p... in the c... at any one time. Rules often specify w... the cameras can be placed, require all pictures be taken with a... l..., and even standards of d... for photographers Example: -CA - a t... ... has to make specific f... before they can p... the recording of court proceedings -FL - the t... c... must hold an e... h... if a ... or other participant protests TV coverage. Before cameras and recorders may be e..., there must be a f... the electronic coverage of the trial would have an important "q...y d... ef..." on the trial than would other types of coverage -MS Supreme Court - ruled a t... ... couldn't bar a TV station from televising a sentencing hearing unless the court could j... c... the proceeding to all mass media -GA Supreme Court - ruled a t... c... must c... a specific f... b... to deny a newspaper's request to take still photographs at a murder trial. S... regarding potential harm wasn't sufficient Federal Courts Cameras are generally ... in federal courts, including the Supreme Court!!! In 2011, a push by the media to p... cameras to at least record the a... over the constitutionality of Obama's health care law. The request was d...! Most of the justices don't want the a... to be t... or even r...! Why? 1. Some justices say the p... cannot be t... to u... goes on during the o... a... 2. Some say they worry the kind of p... s... televised hearings would bring would a... the b... of the l... and even the j... for the worse 3. Some say they fear harm to their p... p... or the c...'s pr... Another unspoken concern was the "s... b..." factor - some broadcasters would seek to televise e... hearings, but most would simply show b... b... and p... of the hearings The ban against the use of cameras and other recording equipment in ... federal courts is not ..., as it is in the ... c..., but the courtrooms aren't nearly as o... as they are in ... courts! Ex... use of cameras in federal ... courts occurs now and then: -2010: Judicial Conference authorized a three-year p... p... to evaluate the effect of cameras in d... court courtrooms. The program applied ONLY to c... cases. Proceedings may be recorded with approval of the j... and p... must c... to the recording of each proceeding in a case. Videos were then posted -14 courts participated in the p..., from 2011-15 -9th Circuit Judicial Council, in cooperation with the Judicial Conference, authorized the three districts in the 9th Circuit that participated in the cameras p... to continue the p... p... under the same terms and conditions! However... -Supreme Court b... a federal ... court from broadcasting a nonjury trial in a case involving Proposition 8 - which amended the CA Constitution to include the state would only recognize marriage between a man and a woman as valid (Hollingsworth v. Perry) -9th Circuit Judicial Council had decided to begin a p... p... allowing the use of cameras in federal ... courts. Judge of the ... Court for the Northern ... of CA announced under the p... p... oral arguments in Hollingsworth would be streamed live to courthouses in other cities and recorded for broadcast. Wishing to block the recording and broadcasting of their testimony, supporters of the proposition filed an application for a stay of the decision with the Supreme Court. In a p... ... opinion, the Court held while it was not "expressing any views on the propriety of broadcasting proceedings generally," the ... court had not properly amended its rules! Outside of these isolated p... p..., cameras are allowed in federal courts on a V... L... B... and typically only when acceptable to the judges in a particular c... -Cameras currently permitted in the ... and ... Circuits The federal courts have r... rules regarding ... taping over the last decade -2010, Judicial Conference announced federal courts could provide public with d... ... r... of court hearings (available o...). Presiding judge in each ... would make the decision whether to make the r... available, largely based on s... concerns! -Later in 2010, Supreme Court said it would post on its ... s... ... r... of the o... a... presented to court a few days after they took place. In the past the Supreme Court released a small number of such r... of "notable" a... on the same day. Recordings of all a... would be available the beginning of next court term -Most court observers applauded the change, it would take the court out of the business of deciding which a... were n... or n..., a practice that raised ... ... concerns! Not all federal courts a... these changes! Example: In proceedings related to the seizure of documents from the home and office of Cohen, former attorney to Trump and Trump Organization, CNN asked the court to r... ... of the hearing and release the r... to the public. The judge in the case d... the request, citing the court's long-standing rule against r... proceedings! Cell Phones, Laptops and Tweets -Legal questions on the ability to use p..., h... communication d... by reporters, bloggers, spectators just beginning to be asked and unfortunately many answers are tentative! Many but not ... courts - state and federal - allow ... ...! The rulings on using ... c... vary greatly Most federal courts haven't addressed the issue of ..., though some have begun to confront it with different results Example: -2009, U.S. District Judge Marten allowed a journalist to use a Blackberry device to update his ... account to cover a federal racketeering trial. While the reporter had been ... from the courtroom since 2007, Marten's decision was the first o... o... from a f... ... allowing this form of coverage! -Not long after Marten's order another U.S. District Judge wrote Rule 53 of the F... R... of C... P... should be interpreted as banning ... -To date, the U.S. ... ... of ... have remained s... on the issue of ... or using w... c... d...! In addition, many states have yet to consider the question of whether updating a ... feed is "b..." However, even states that have traditionally been c...-f... may have trouble adjusting to new media like ... Example: -FL, electronic media and still photography coverage of proceedings is allowed. In early 2010, the Standing Committee on Rules of Practices and Procedures considered a s... b... on e... d... in courthouses, though the proposal was voted down. The FL District Court of Appeals ruled later the use of l... c... to transmit information outside the courtroom was p..., unless it caused a d...! While some courts are allowing ..., others have banned it - particularly in h...-... cases! Example: -IL Judge banned all spectators, including journalists, from ... during the trial of Balfour, who was charged with the murder of singer Hudson's mother -Judge banned all "e...-based communications from the courtroom during the trial of Sandusky for sex abuse" Cleland interpreted Pennsylvania state court laws that ban b... of court proceedings to prohibit l...e t... from the trial [Similar to Rule 53] Although Judge originally interpreted the rule to only prohibit the ... of direct quotes, when members of the media filed a motion seeking clarification he modified his ruling to ban all ... from the trial These rulings and others indicate most courts appear to be taking an a... h... approach and there is no b... c... about whether/not to let journalists use portable electronic devices to do l...e u... during trials, with many jurisdictions considering the issue on a ...-by-... basis! The best advice is to ask a court official if it is p... to use any of these devices during a trial. In most instances, the question of whether a journalist is allowed to use s... m... depends on the ...'s sensibilities. Don't assume it is p...! Executions Courts have b... the t... of executions in the U.S., most recently in 2004 when 8th Circuit ruled there was no ... ... right to v... an execution! [This decision upheld a MO corrections department policy barring all c... and r... d... from execution chambers. Similar decisions in last 15 years] [Just not allowed] Juries Media organizations have also ... in their attempts to get c... and other recordings equipment into the ... room! [Generally prohibited] Example: -Trial judge in Houston said he would allow the PBS documentary series "Frontline" to film the ... d... in a death penalty case. The defendant and his mother agreed to the filming, as did the defendant's attorney -But the state argued against the filming, claiming the process would turn the d... into a "Survivor"-style reality program. Scholars who study ... tended to agree, calling the comparison with the TV program correct. "It involves ... in signing on for a n... p... p... The potential for that having a d... effect on their w... is palpable" -The TX Criminal Court of Appeals, state's highest criminal appeals court, ... the judge's plan. The court cited a state statute that said, "No person shall be permitted to be with a ... while it is d...!" This prohibits the t..., the court believed the f... would introduce "o... in... and p..." on the ...! Some states have on occasion permitted the filming of ... d... in c... cases. The taping of ... d... in c... cases for research or educational purposes has also taken place. BUT AS A GENERAL RULE, cameras and audio recording equipment are b... from the ... room, and is unlikely this prohibition will change anytime soon Remember... the right of access to p... p... (h...) and d... is q...! The presumption of openness may be overcome [Press-Enterprise test elements] Broadcast journalists are given somewhat ... access when they seek to obtain copies of a... or v... e... or seek to r... or t... a j... p...! Access to t... e... is developing on a ...-by-... basis, and courts have granted journalists increasing rights to make ... of this material for later b...!

State Courts Chandler v. Florida permits states to open their courtrooms to cameras! It doesn't REQUIRE them do so! The Supreme court did not say photographers have a 1A right to take their equipment into courtrooms; instead, it simply said states were free to experiment with TV coverage of trials Today, all 50 states allow some camera coverage. However, the extent of coverage permitted, as well as the rules journalists must follow, differs greatly among the states. In some states, cameras will not be permitted unless various key trial participants agree. In more states, the cameras are allowed on the discretion of the judge. If a participants objects to the admission of cameras to the courtroom, the press must honor this objection and refrain from photographing or recording this individual. And judges can and do require cameras to be turned off during the presentation of certain kinds of evidence, such as gory crime scene photos. Most states have adopted guidelines that establish the number of still and motion picture cameras permitted in the courtroom at any one time. Rules often specify where the cameras can be placed, require that all pictures be taken with available light and even standards of dress for photographers and technicians Example: In California, a trial judge has to make specific findings before they can prohibit the recording of court proceedings In Florida, the trial court must hold an evidentiary hearing if a defendant or other participant protests the TV coverage. Before cameras and recorders may be excluded, there must be a finding the electronic coverage of the trial would have an important "qualitatively different effect" on the trial than would other types of coverage 2005, MS Supreme Court ruled a trial court couldn't bar a TV station from televising a sentencing hearing unless the court could justify closing the proceeding to all mass media And the Georgia Supreme Court ruled in the same year a trial court must cite a specific factual basis to deny a newspaper's request to take still photographs at a murder trial. Speculation regarding potential harm wasn't sufficient In other situations, the press must often be willing to share the fruits of the photography through pooling agreements, since most states have guidelines limiting movement and placement of cameras to when the court is in recess only Federal Courts Cameras are generally BANNED in federal courts, including the U.S. Supreme Court! 2011, there was a push by the media to permit cameras to at least record the arguments over the constitutionality of President Obama's health care law. The request was doomed. Why? Most of the justices don't want the arguments to be televised or even recorded. Several reasons: 1. Some justices say the public cannot be trusted to understand what goes on during the oral arguments 2. Some say they worry the kind of public scrutiny televised hearings would bring would alter the behavior of the lawyers and even the justices for the worse 3. Some say they fear harm to their personal privacy or the court's prestige An unspoken but real concern is the "sound bite" factor. While some broadcasters seek to televise entire hearings, there is no doubt most would simply show brief bits and pieces of the hearings The ban against the use of cameras and other recording equipment in lower federal court is not absolute, as it is in the high court, but the courtrooms are not nearly as open as they are in state courts. Experimental use of cameras in federal trial courts occurs now and then Example: 09/2010, Judicial Conference authorized a three-year pilot project to evaluate the effect of cameras in district court courtrooms. The program applied ONLY to civil cases. Under the program, proceedings may be recorded with the approval of the presiding judge and parties must consent to the recording of each proceeding in a case. Videos were then posted on uscourts.gov. 14 courts participated in the pilot, which began in 06/2011 and ended in 07/2015. In 03/2016, the 9th Circuit Judicial Council, in cooperation with the Judicial Conference, authorized the three districts in the 9th Circuit that participated in the cameras pilot (CA Northern; WA Western; Guam) to continue the pilot program under the same terms and conditions 2010, however, Supreme Court barred a federal district court from broadcasting a nonjury trial in Hollingsworth v. Perry, a case involving Proposition 8 - which amended the CA Constitution to include a section providing the state would only recognize marriage between a man and a woman as valid. Earlier, 9th Circuit Judicial Council had decided to begin a pilot program allowing the use of cameras in federal district courts. Cases would be selected for participation by the chief judge of the district court in consultation with the chief circuit judge. Judge Walker of the District of Court for the Northern District of CA announced under the pilot program oral arguments in Hollingsworth would be streamed live to courthouses in other cities and recorded for broadcast on the Internet. Wishing to block the recording and broadcasting of their testimony, supporters of the proposition filed an application for a stay of (suspend) the decision with the Supreme Court. In a per curiam opinion, the Court held, while it was not "expressing any views on the propriety [decency] of broadcasting court proceedings generally," the district court had not properly amended its rules Outside of these isolated pilot programs, in some instances, cameras are allowed in federal courts on a VERY LIMITED BASIS and typically only when if acceptable to the judges in a particular circuit. Currently, cameras are permitted in only the 2nd and 9th Circuits The federal courts have revised rules regarding audio taping over the last decade March 2010, the Judicial Conference announced federal courts could provide the public with digital audio recordings of court hearings. The recordings would be available online and cost $2.40. The presiding judge in each district would make the decision whether to make the recording available, largely based on security concerns. In 09/2010, the Supreme Court said it would post on its Web site audio recordings of the oral arguments presented to the court a few days after they take place. In the past the high court had released a small number of audio recordings of "notable" arguments on the same day they took place. Recordings of all arguments were released, but not until the beginning of the next court term. Most court observers applauded the change, noting it would take the court out of the business of deciding which arguments were notable or newsworthy, a practice that raised 1A considerations to some Not all federal courts have adopted these changes, however! Example: 2018, in proceedings related to the seizure of documents from the home and office of Cohen, former attorney to Trump and the Trump Organization, CNN asked the court to record audio of the hearing and release the recording to the public. The judge in the case denied the request, citing the court's long-standing rule against recording proceedings Cell Phones, Laptops, Tweets and Texts Legal questions on the ability to use personal, handheld communication devices by reporters, bloggers and spectators are just beginning to be asked and unfortunately many answers are tentative (not fixed)! Many, but not all, courts - state and federal - allow cell phones! The rules on using laptop computers vary greatly. Most federal courts haven't addressed the issue of Twitter, though some have begun to confront the issue - with differing results Example: 2009, U.S. District Judge Marten allowed a journalist to use a Blackberry device to update his Twitter account to cover a federal racketeering trial. While the reporter had been tweeting from the courtroom since 2007, Marten's decision was the first official order from a federal judge allowing this form of coverage! Not long after Marten's order, however, U.S. District Judge Land wrote Rule 53 of the Federal Rules of Criminal Procedure should be interpreted as banning tweeting. According to Judge Land, the rule's prohibition on the "broadcasting of judicial proceedings" included "sending electronic messages from a courtroom that contemporaneously [at the same time] describe the trial proceedings and are instantaneously available for public viewing" To date, the U.S. Circuit Courts of Appeals have remained silent on the issue of tweeting or using wireless communication devices! In addition, many states have yet to consider the question of whether updating a Twitter feed is "broadcasting." However, even states that have traditionally been camera friendly may have trouble adjusting to new media such a Twitter Example: Florida, electronic media and still photography coverage of proceedings is allowed. In early 2010, however, the Standing Committee on Rules of Practices and Procedures considered a statewide ban on electronic devices in courthouses, though the proposal was voted down. The Florida District Court of Appeals ruled later the use of laptop computers to transmit information outside the courtroom was permitted, unless it caused a disruption While some courts are allowing Twitter, others have banned it - particularly in high-profile cases! Example: 2012, Judge Burns of IL banned all spectators, including journalists, from tweeting during the trial of Balfour, who was charged with the murder of singer Jennifer Hudson's mother. The same year, Judge Cleland banned all "electronic-based communications from the courtroom during the trial of Sandusky for sex abuse" Cleland interpreted Pennsylvania state court laws that ban broadcasting of court proceedings to prohibit live tweeting from the trial. Although Cleland originally interpreted the rule to only prohibit the tweeting of direct quotes, when members of the media including AP and ESPN filed a motion seeking clarification he modified his ruling to ban all tweeting from the trial These rulings and others indicate most courts appear to be taking an ad hoc approach and there is no broad consensus about whether to let journalists use portable electronic devices to do live updates during trials, with many jurisdictions considering the issue on a case-by-case basis! The best advice is to ask a court official if it is permissible to use any of these devices during a trial. In most instances, the question of whether a journalist is allowed to use social media will depend on the judge's sensibilities. Don't assume it is permitted! Executions Courts have barred the televising of executions in the U.S., most recently in the summer of 2004 when the 8th Circuit ruled there was no 1A right to videotape an execution. The decision upheld a MO corrections department policy barring all cameras and recording devices from execution chambers. Similar decisions have been rendered for the past 15 years Media organizations have also failed in their attempts to get cameras and other recording equipment into the jury room Example: 11/2002, trial judge in Houston said he would allow the PBS documentary series "Frontline" to film the jury deliberations in a death penalty case. The 17-year-old defendant and his mother agreed to the filming, as did the defendant's attorney. "If the State of TX wants to execute a 17-year-old, the whole world should be watching to make sure it is done right" attorney Rodriguez said. But the state argued against the filming, claiming the process would turn the deliberations into a "Survivor"-style reality program. Scholars who study juries tended to agree, calling the comparison with the TV program correct. "Conscripting [enlisting] citizens for a reality TV program strikes me as a bad idea," Diamond told NYT. "It involves jurors in signing on for a national public performance. The potential for that having a distorting effect on their work is palpable" Three months later, the TX Criminal Court of Appeals, the state's highest criminal appeals court, rejected the judge's plan. The court cited a state statute that said, "No person shall be permitted to be with a jury while it is deliberating." This prohibits the taping, the court said, adding it believed the filming would introduce "outside influence and pressure" on the jury Some states have on occasion permitted the filming of jury deliberations in criminal cases. The taping of jury deliberations in civil cases for research or educational purposes has also taken place. But as a general rule, cameras and audio recording equipment are BARRED from the jury room, and it is unlikely this prohibition will change anytime soon Summary The right of access to pretrial proceedings and documents is qualified. The presumption that these hearings are open can be overcome only by showing there is an overriding interest that must be protected, that there is a "substantial probability" than an open hearing will damage this right, the closure is narrowly tailored to deny access to no more of the hearing than is necessary to protect this interest, that the court has considered reasonable alternatives to closure, that closure of the hearing would in fact protect the interest that has been raised and that the trial judge has articulated findings - which may be reviewed by an appellate court - that support these four points Broadcast journalists are given somewhat less access when they seek to obtain copies of audio or videotaped evidence or seek to record or televise a judicial proceeding. Access to the taped evidence is developing through a case-by-case approach, and courts have granted journalists increasing rights to make copies of this material for later broadcast. The Supreme Court has ruled the mere presence of such devices doesn't in and of itself prejudice a defendant's right to a fair trial. The federal courts have generally refused to permit cameras in the courtroom. Cameras are barred from executions, and the filming of jury proceedings is generally prohibited

Exemption 8: Financial Records Matters contained in or related to examination, operating or condition reports prepared by, on behalf of or for the use of any agency responsible for the r... and s... of ... in... This is a ...-used exemption that is designed to prevent the disclosure of sensitive ... records or audits that if made public might undermine the public confidence in b..., t... c..., in... ... f... and other ... institutions Example: Federal court held Securities and Exchange Commission had successfully asserted Exemption 8 related to an SEC investigation of Charles Schwab Corporation and Nucor Corporation. The court initially found that the "purpose underlying Exemption 8 is to ensure ... in...' s... and that Congress also enacted Exemption 8 to promote c... between b... and regulating a... It then held that Exemption 8 protected the requested documents because they "were produced in connection with an ongoing SEC investigation and provide insight into the info and entities the SEC attorneys were examining and investigating" Exemption 9: Geological Data Geological and geophysical information and data, including m... concerning w... People who drill ... and ... w... provide considerable information about these w... to the government. This exemption prevents speculators and other drillers from gaining access to this valuable information

8. Financial Records Exemption 8: Matters contained in or related to examination, operating or condition reports prepared by, on behalf of or for the use of any agency responsible for the regulation and supervision of financial institutions. This is a little-used exemption that is designed to prevent the disclosure of sensitive financial records or audits that if made public might undermine the public confidence in banks, trust companies, investment banking firms and other financial institutions. 2007, federal court held the U.S. Securities and Exchange Commission had successfully asserted Exemption 8 related to an SEC investigation of Charles Schwab Corporation and Nucor Corporation. The court initially found that the "purpose underlying Exemption 8 is to ensure financial institutions' security and that Congress also enacted Exemption 8 to promote communication between banks and regulating agencies. It then held that Exemption 8 protected the requested documents because they "were produced in connection with an ongoing SEC investigation and provide insight into the info and entities the SEC attorneys were examining and investigating" 9. Geological Data Exemption #9: Geological and geophysical information and data, including maps concerning wells. People who drill oil and gas wells provide considerable information about these wells to the government. This exemption prevents speculators and other drillers from gaining access to this valuable information.

Review: Consent as a defense against IOP (...): 1. ... - need consent from ... if working with the likeness or image in promoting a product or service 2. ... ... 3. ... #s 2 and 3 can give consent, but is it legally meaningful consent? They could give consent but it may not be as ironclad than say the general population [Not as sure of a thing as the general population!] Example: Use someone of the ... for likeness - they could get out of ..., then say "I consented, but I do not now!" (not as ironclad) The four torts of invasion of privacy 1. ... of one's ... or ... for ... purposes 2. ... upon an individual's ... or ... 3. ... ... of ... ... about an individual 4. Publishing material that puts an individual in a ... ... #4: Not as often used today due to the ... of ... (... has a ... basis, ... ... not so much) False Light It is illegal to publicize material that places an individual in a ... ... if: a) the ... ... in which the individual was placed would be ... ... to a ... ... and b) the publisher of the material was ... ... when the publication was made a) This is different than ... damage (AN ...) Burden of proof is on the ... to prove (3 elements): 1. Publication of the material must put an individual in a ... ... 2. The ... ... would be ... ... to a ... ... (not lighthearted, this is a serious ... or ...) 3. The publisher of the material is ... ... Compare to Libel Law Both involve publishing something ... about the ...! BUT Libel: Plaintiff must show harm to ... (Harm comes from loss of ...) False Light: Plaintiff must show ... or ... (Harm comes from loss of ... or right to be ... ...) With false light, you have a right to keep to yourself and not be dragged through the mud Harm comes then, from that loss of ... or right to be ... ... Fault The 3rd element to prove in False Light Libel - distinction between ... persons (need to prove ... ... - actively lying or reckless disregard for the truth) and ... persons (need to prove ... - didn't do enough diligence) False light - ... persons must prove ... ...! No distinction between ... and ... people So, if something is just negligent - ... to prove a false light case against you This is why false light is not a popular claim (... ... to prove and ... of defamation law) Risk areas for false light 1. ...! Name vs. identity Media about people and depict them in ... ways [Put in feature film, loosely fictional adaptation of real people and real events] (Law and Order, Hallmark) Example: The Richard Jewell movie - a woman journalist depicted sleeping with an FBI agent to get a scoop (the REAL journalist didn't do that!) This is ... (could put a real life person in a false light) More on name vs. identity: Real names often appear in novels, films, TV or ads. The decision rests on whether just the name was taken or whether the identity was taken too. Example: NYT, ad agency, United Negro College Fund sued by Lawrence Botts Jr., educated white man who complained he had been put in false light by an ad carried in the NYT for the United Negro College Fund. The ad depicts a fictional black man who has turned to alcohol because he couldn't afford a college education. The man's name in the ad was Larry Botts. 3rd Circuit rejected the suit, the name in the ad was simply a John Doe, 'a generic place holder' The differences between just taking a name and taking an identity can be subtle. Author writes a novel about an actress who has AIDS. In the book, the actress' best friend is a short, chubby nurse named Julia Roberts. The writer has taken actress Julia Roberts' name but not her identity. But if an actress who has AIDS is named Julia Roberts, is rather tall and thin, won an Academy Award, married to cinematographer Daniel Moder, then the writer has taken the identity as well as the name. How many characteristics must be the same before plaintiffs can claim their identity was taken and they were placed in a false light? Courts decide this on a case-by-case basis Novels and feature films often carry a disclaimer. Will this ward off a false-light suit? NO. You cannot escape liability for committing a legal wrong by announcing that you are not liable. The disclaimer that a book is a work of fiction and the characters are fictitious won't prevent a successful privacy suit if the author has obviously appropriated someone's identity and put them in a false light 2. Misuse of ... or ... Example: Placing headline in a way that makes someone look like they did something they did not really do Boy scout shooting at target - placement of ... next to text "Teen commits school shooting" The placement of the text and ... could result in this boy scout being cast in a false light The Saturday Evening Post magazine once published a picture of a little girl who was brushed by a speeding car in an intersection and lay crying in the street. The girl was the victim of a motorist who ignored a red traffic light, but in the magazine the editors implied she had caused the accident herself by darting into the street between parked cars. The picture was totally unrelated to the story, except that both were about people being hit by cars. Plaintiff sued the Post and won When a story is published in the employee magazine about worker carelessness as a prime cause of industrial accidents, control the impulse to pull from the files of a random picture of one of the employees working on the assembly line. That employee could contend the story and photo suggest she is careless. Don't use old photos of kids hanging around the parking lot at a local park to illustrate a news story on neighborhood complaints about drug dealing in the park. Juxtaposing the wrong pictures with the wrong words could give viewers the impression that one of these kids is selling or using drugs.

-Appropriation 1. Underage (guardian) 2. Mentally ill/mental illness 3. Incarcerated Incarcerated, prison 1. Appropriation, name, likeness, trade 2. Intrusion, solitude, seclusion 3. Public disclosure of private facts 4. False light (Constitutionalization of defamation (defamation has a constitutional basis, false light not so much) False light, false light, highly offensive, reasonable person At fault Reputational (AN OFFENSE) Plaintiff False light False light, highly offensive, reasonable person (serious misrepresentation or offense) At fault Derogatory, plaintiff Reputation, reputation Embarrassment or humiliation (privacy, left alone) Public, actual malice Private, negligence All, actual malice Public and private Harder Higher burden, constitutionalization Fictionalization Misuse of photographs/videos Photo, photo

Element #2: Highly Offensive Material Before a plaintiff can win a false-light case, the court must be convinced the material that is false is ... ... to a ... ... -Records do contain a handful of cases where non-... material was basis for successful false-light suit, but not typical of modern decisions Cibenko v. Worth Publishers Plaintiff was port authority police officer whose photo appeared in college sociology text. Picture depicted white police officer in a public place apparently prodding a sleeping black man with his nightstick, caption read: "The social status of the offender seems to be the most significant determinant of whether a person will be arrested for an offense and the kind of penalty that will be applied. In this picture a police officer is preventing a Black male from falling asleep in a public place. Would the officer be likely to do the same if the "offender" were a well-dressed, middle-aged white person?" -Cibenko claimed photo and caption made him appear to be a racist, and this portrayal was false. U.S. District Court in NJ disagreed and ruled there was no ... meaning attached to the photo and caption, especially not a ... ... meaning The harm in a false light case is different from harm in a defamation case - In false-light suit, harm caused by a loss of ... or the right to be l... ... Element #3: Fault Requirement Since 1967, plaintiffs in a false-light case have been required to prove a fault requirement much like one applied in libel cases. The case in which this fault requirement was applied to IOP was the first ... ... ... of ... suit ever heard by the U.S. Supreme Court Time, Inc. v. Hill (1967) (5-4) James Hill family was held captive in their home for nearly 24 hours by three escaped convicts. The incident became a widely publicized story. Author Joseph Hayes wrote a fictional account, a novel about such an occurrence, "The Desperate Hours" which focused on a fictional four-member Hilliard family that was held hostage by three escaped convicts. The book was made into a movie and a play. Before the play "The Desperate Hours" opened on Broadway, Life magazine published a feature story about the drama, stating it was a reenactment of the ordeal suffered by the James Hill family -James Hill sued for IOP. He complained the magazine had used his family's name for trade purposes and the story put the family in false light. The Desperate Hours did follow the basic outline of the Hill family ordeal, but contained differences -Family won money damages in New York state courts, but the Supreme Court ... the lower-court rulings and sent the case back ... for another ... -No subsequent ... filed -Applied same ... ... standards developed in ... "We hold the constitutional protections for speech and press prevent the application of the New York privacy statute to redress false reports of matters of public interest in the absence of proof the defendant published the report with ... of ... or in ... ... of the ..." Since 1967, fault requirements in libel cases have substantially been modified (Gertz v. Welch - public persons prove actual malice, private person prove at least negligence) Did the high court intend this two-part fault standard be applied to false-light IOP too? The Supreme Court had an occasion to answer this question but ... to do so! Cantrell v. Forest City Publishing Co. -Sufficient evidence to show defendant acted with ... ... for the ..., because the defendant could prove ... ..., Court didn't consider whether a ... ... ... would have to prove only ... to sustain fault requirement in false-light privacy action or whether the standard announced in Hill applied to all false-light cases Whether the Gertz variable-fault standard is applicable to false-light remains an open question -Most authorities tend to think the rule of Hill - that ... plaintiffs are required to show ... ... (... of ... or ... ... of the ...) will stand as law in most jurisdictions. This is because... a. Supreme Court could have changed its rules in Cantrell but did not b. Supreme Court could have modified Time, Inc. rule in Gertz but did not c. A statement that isn't ... is likely to be less ... to a plaintiff (the less harm, the higher the fault requirement) -Some courts have taken a different point of view and ruled ...-... ... must prove only ..., but most courts have not (rule all plaintiffs must show ... ...) -Sports Illustrated published articles on recruiting and retention practices of OSU football program. Discussed Talley, an OSU booster -According to articles, Talley overcompensated football players for jobs performed on his ranch and speaking engagements -Talley sued Time, Inc. and two reporters for false light IOP. 10th Circuit affirmed summary judgment in favor of Time, Inc. because Talley failed to show the articles were published with '... of or ... ... to f...' of the publication a. Reporters conducted 'a long and thorough investigation' that involved interviewing dozens of OSU players and personnel and extensive fact checking b. Talley failed to point to any evidence the defendants 'e... ... regarding the ... of the statements' in the articles c. The appellate court also rejected Talley's argument the reporters could be held liable because they interviewed OSU players with past drug issues and criminal records. The court noted because the articles reported on 'drug use, financial misconduct, and academic dishonesty' in the program, reporters had to rely on sources who had ... in such activities d. The court also rejected Talley's argument the reporters could be sued for false light because they presented a s..., ... narrative. The ... the story was written didn't impact whether it was published with '... of ... or ... ... for the ...' Remember... -Only ... have the right to privacy (..., ..., and ... DO NOT) C... do not have right to personal privacy when it comes to g... r... requested under ... of ... ... -It is impossible to civilly libel a ... ..., but a few state privacy statutes make it possible for an ... to maintain an action for invasion of privacy

2. Highly Offensive Material Before a plaintiff can win a false-light case, the court must be convinced the material that is false is highly offensive to a reasonable person. Records contain a handful of cases where non-offensive material was the basis for a successful false-light suit Typical of modern decisions, however, is the case of Cibenko v. Worth Publishers. The plaintiff was a New York-New Jersey Port Authority police officer whose photo appeared in a college sociology text. In a section of the book titled "Selecting the Criminals," picture depicted a white police officer (Cibenko) in a public place apparently prodding a sleeping Black man with his nightstick. The caption for the picture stated:"The social status of the offender seems to be the most significant determinant of whether a person will be arrested and convicted for an offense and of the kind of penalty that will be applied. In this picture a police officer is preventing a Black male from falling asleep in a public place. Would the officer be likely to do the same if the "offender" were a well-dressed, middle-aged white person?" Officer Cibenko claimed the photo and caption made him appear to be a racist, and this portrayal was false. A U.S. District Court in NJ disagreed and ruled there was no offensive meaning attached to the photo and caption, especially not a highly offensive meaning. A U.S. District Court in Maine dismissed a suit by a man who had fallen out of the hatch of a small airplane but managed to cling to the door rails until the pilot made an emergency landing. An article in National Enquirer embellished (made it more interesting) the story somewhat, adding material on what the plaintiff had thought about as he clung to the airplane. The reporter had never communicated with the accident victim and therefore couldn't have known what went through his mind. The court ruled the description of physical sensations and predictable fears, though possibly exaggerated or maybe even fanciful, wasn't offensive to a reasonable person. It is important to remember, however, the harm in false light is different from the harm in a defamation case! In defamation, the harm comes from a loss of reputation. In a false-light suit, the harm is caused by a loss of privacy or the right to be left alone. 3. The Fault Requirement Since 1967, plaintiffs in false-light cases have been required to prove a fault requirement much like the one applied in libel cases. The case in which this fault requirement was applied to IOP was the first mass media invasion of privacy suit ever heard by the U.S. Supreme Court. In early 1950s, James Hill family was held captive in their home for nearly 24 hours by three escaped convicts. The fugitives were captured by police shortly after leaving the Hill home. The incident became a widely publicized story. At about the same time, there were other similar hostage-takings in other parts of the US. Author Joseph Hayes wrote a fictional account, a novel about such an occurrence, "The Desperate Hours" which focused on a fictional four-member Hilliard family that was held hostage by three escaped convicts. The book was made into a movie and a play. Before the play "The Desperate Hours" opened on Broadway, Life magazine published a feature story about the drama, stating the play was a reenactment of the ordeal suffered by the James Hill family. The actors were even taken to the home in which the Hills had lived (now vacant) and were photographed at the scene of the original captivity. James Hill sued for IOP. He complained the magazine had used his family's name for trade purposes and the story put the family in false light. The Desperate Hours did follow the basic outline of the Hill family ordeal, but it contained many differences. The fictional Hilliard family, for example, suffered far more physical and verbal indignities at the hands of the convicts than the Hill family. The family won money damages in New York state courts, but the Supreme Court of the U.S. vacated the lower-court rulings and sent the case back down for yet another trial. The Hill family gave up at this point, and no subsequent trial was held. Justice William Brennan in a 5-4 ruling, applied same 1A standards he had developed in New York Times Co. v. Sullivan libel suit to this category of IOP litigation. "We hold the constitutional protections for speech and press prevent the application of the New York privacy statute to redress false reports of matters of public interest in the absence of proof the defendant published the report with knowledge of falsity or in reckless disregard of the truth." Time, Inc. v. Hill decided in 1967, three years after the Sullivan ruling. But since 1967, the high court has substantially modified the fault requirements in libel cases. In 1974, Gertz v. Welch, the court reiterated the so-called public persons must prove actual malice to maintain a successful libel action but added that private persons must also prove fault - at least negligence. Did the high court intend this two-part fault standard be applied to false-light IOP cases as well? The Supreme Court had an occasion to answer the question shortly after its ruling in Gertz but declined to do so. In Cantrell v. Forest City Publishing Co., a false-light IOP case, the high court concluded there was sufficient evidence to show the defendant acted with reckless disregard for the truth. Because the defendant could prove actual malice in this case, the court said it didn't have to consider whether a private-person plaintiff would have to prove only negligence to sustain the fault requirement in a false-light privacy action. "This case presents no occasion to consider whether a state may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a false-light theory of IOP or whether the constitutional standard announced in Time, Inc. v. Hill applies to all false-light cases, Justice Stewart wrote for the court. Whether the Gertz variable-fault standard is applicable to false-light case remains an open question. Most authorities tend to think the rule of Time, Inc. v. Hill - that all plaintiffs are required to show actual malice, knowledge of falsity or reckless disregard of the truth - will stand as law in most jurisdictions. Several factors prompt this conclusion: 1. The Supreme Court could have changed its rules in the Cantrell case, but did not. 2. The high court could have modified the Time, Inc. v. Hill rule in Gertz, but did not. 3. A statement that isn't defamatory is likely to be far less damaging to a plaintiff - the less harm, the higher the fault requirement. Some courts have taken a different point of view and ruled private-person false-light plaintiffs must prove only negligence. But most courts that have considered the matter have ruled ALL false-light plaintiffs must show actual malice to recover. 2013, Sports Illustrated published series of articles on questionable recruiting and retention practices of OSU football program. The series discussed John Talley, an OSU booster. According to articles, Talley allegedly overcompensated OSU football players for jobs performed (or not performed) on his ranch, as well as for speaking engagements. Talley sued Time, Inc., the publisher of SI, and two reporters for false light IOP. In 2019, 10th Circuit affirmed summary judgment in favor of Time, Inc. because Talley failed to show the articles were published with 'knowledge of or reckless disregard to falsity' of the publication. In its opinion, the court detailed the defendants' reporting process, noting they conducted 'a long and thorough investigation' that involved interviewing dozens of OSU players and personnel and extensive fact checking. Talley failed to point to any evidence the defendants 'entertained doubts regarding the truth of the statements' in the articles. The appellate court also rejected Talley's argument the reporters could be held liable because they interviewed OSU players with past drug issues and criminal records. The court noted because the articles reported on 'drug use, financial misconduct, and academic dishonesty' in the football program, the reporters had to rely on sources who had participated in such activities. The court also rejected Talley's argument the reporters could be sued for false light because they presented a slanted, sensationalized narrative. The way the story was written didn't impact whether it was published with 'knowledge of falsity or reckless disregard for the truth.' The reporters, the court wrote, were entitled to edit the story and choose its theme. A few points should be reiterated before the discussion of privacy comes to an end: è ONLY PEOPLE have the right to privacy. Corporations, businesses, and governments do not enjoy the legal right of privacy as such. 2011, U.S. Supreme Court ruled corporations have no right to 'personal privacy' when it comes to government records requested under the Freedom of Information Act (FOIA) in Federal Communications Commission v. AT&T Inc. The telecommunications company AT&T had contended because 'person' is sometimes defined in federal law to mean a corporation as well as an individual, the company was entitled to a FOIA exemption that relates to 'personal privacy.' è It is impossible to civilly libel a dead person, but a few state privacy statutes make it possible for an heir to maintain an action for invasion of privacy. Although privacy law isn't as well charted as libel law, and although there are fewer privacy cases, suits for IOP are a growing menace to journalists. Summary It is an IOP to publish false information that places an individual into what is called a false light. However, this false info must be considered offensive to a reasonable person. Also, the plaintiff must prove the info was published NEGLIGENTLY, with knowledge of its falsity or with reckless disregard for the truth. One common source of false-light privacy suits is any drama that adds fictional material to an otherwise true story. The use of fictional rather than real names in such a drama will normally prevent a successful IOP suit. The coincidental use of a real name in a novel or stage play will not stand as a cause of action for IOP. Most false-light cases, however, result from publication of false info about a person in a news or feature story. Pictures of people who aren't involved in the stories the pictures are used to illustrate frequently provide false-light privacy suits.

Publishing Illegally Obtained Information Bartnicki v. Vopper (2001) Supreme Court decision...? -Establishing the following test for determining whether the press is liable for publishing ... ... obtained ...: The press may freely publish: 1. ... material 2. About matters of ... ... 3. That is ... ..., even if from a source who ... ... 4. Unless the government can demonstrate an ... of the ... ... (... s...) Example: Hacker obtains private information, puts it in envelope and mails it to reporters Trump tax information - do not know if obtained illegally, but the Times (who published the tax information) did not do the illegal obtaining, just legally received it BUT if reporter steals information and then mails it to themselves - if the government has the inference to know the reporter did in fact do this, can sue! Not an ... ... to the press Example: Cancún Cruz Information will be disclosed to the New York Times -Heidi Cruz, Ted Cruz's wife, sent private group texts. One of the group chat members screen-shotted the texts and leaked them to NYT, who published them -Ted Cruz caught in lie, escorting family to Cancun and coming right back (claimed was just a trip) but they planned to stay to escape the bitter cold wreaking havoc on Texas (would change flight and come back) -Was a weather disaster in the state, chose to leave for a tropical vacation 1. Was this an intrusion into Cruz's private affairs? 2. Did Cruz 'enjoy a reasonable expectation of privacy?' 3. Is the NYT liable for publishing the texts?

Supreme Court ruled (6-3) establishing the following test for determining whether the press is liable for publishing personal information obtained illegally -The press may freely publish: 1. Truthful material 2. About matters of public significance 3. That is lawfully obtained, even if from a source who obtained unlawfully 4. Unless the government can demonstrate an interest of the highest order (strict scrutiny) Not an automatic immunity to the press 1. NO - screenshot was legally obtained (not illegal to share text, not a private communication) -Cruz also went to public airport (what initially outed him, was in public during time) 2. Relatively low expectation given his status as a public figure -Public figure in a public space 3. NOT LIABLE - if NYT hacked into Cruz's phone maybe, but someone who was a party to the text was the one who shared it. NYT not liable!

"Right of Publicity" Comedy III Inc. v. Gary Saderup (2001) Three Stooges drawings sold on t-shirts and merchandise by Saderup. The estate of the Three Stooges claim Saderup is reproducing their image and making money, that he should stop This case creates the ... ... test Determining if an image has been ... enough 1. If reproduction is a ... ... of a celebrity's image, ... ... ... are minimal! -Meaning, the artist's right to reproduce this art is limited (less art than is reproduction of likeness) 2. Free expression rights take ... over the right of a celebrity to privacy if '... ...' of the image has occurred What theory does this test support? -If no significant ... of image, then ... celebrity privacy -If significant ... of image, then ... artist's right to expression Examples: Using the ... ... test Looking at the three images a) Trump with boxer body b) Trump holding finger, "We will win!" c) Trump in old football game Which would Trump be more likely able to sue over? What is the answer? Because ... isn't considered under the ... ... test!!! If an artist sells any but does so as ... than as merchandise (t-shirts for example), than in the clear with this test ... ... Test "Speech with a predominant ... purpose is protected, while speech with a predominant ... purpose isn't." -Less common than transformative use test -More ... -Judges decide whether ... or ... -Problem with the balancing approach (case-by-case basis, depends on specifics) -We see this with the second Trump example: This is art done by an artist, primary purpose is art -So, the transformative use test is to determine If the subject is transformed enough in merchandise (has to be if it is commercial) -The ... ... test concerns art that might be commerce

Transformative Use Test 1. If the reproduction is a literal translation of celebrity's image, First Amendment concerns are minimal 2. Free expression rights take precedence over the right of the celebrity to privacy if "significant transformation" of the image has occurred Preferred position -Transformation, prefer -Transformation, prefer Well, the second image has his full name and likeness (always seen in a suit, making hand gestures, common phrase) The first and third image is certainly transformative (placing Trump in a different context, a whimsical scene) Transformative use test NONE OF THE ABOVE - Art isn't considered under the transformative use test, art Predominant Use test -"Speech with a predominant artistic purpose is protected, while speech with a predominant commercial purpose is not." -Less common than transformative use test -More subjective -Judge decides whether art or commerce. Predominant Use test

Fourth Amendment Protections The 4A protects the rights of the people to be secure against ... ... and ... Journalists are entitled to this q... ... of ... s...on city streets during protests -Supreme Court has held that 4A limitations must be "sc... o..." in cases involving information protected by the ... ...! Journalists often include 4A claims in ... a... against ... ... for lack of ... ... to a... and un... s... of recording equipment! Seizure The Supreme Court has described the seizure of property as a "m... in... with an individual's p... in..." Seizure can also be of an individual's ..., as when law enforcement restrains one ability to walk away -Officers must have ... ... to believe an individual is c... a ... before making an ...! Terry v. Ohio (1968) Supreme Court held law enforcement could b... d... and "f..." an individual for w..., consistent with the ... ..., so long as the officer has a "r... s..." the individual is a... and ...! -"R... s..." standard requires ... than the "fair probability that c... or e... of a c... will be found [the standard of ... ... required to ...] BUT ... than an in... and un... s... or 'h...' -The stop must be justified at the ... it ..., reasonably related in scope to the c... that justified the stop, and conducted using the l... in... means reasonably available Officers can consider c... characteristics like presence in a "h... c... a..." in assessing r... s.., though by itself an individual's mere presence in an area of s... c... a... is in...! During Terry stops, law enforcement can ask people to ... themselves, though whether they are ... to ... depends on the state they are in! At protests, law enforcement cannot stop and ... protestors or journalists without an ..., r... ... they are ... and ...! -If journalists are dispersed in a ... of protestors, and the protest turns ..., however, the risk of a Terry stop (or ... for that matter) is ...! -During a Terry stop, law enforcement may t... s... journalists' ..., though such a seizure typically requires an ... supported by ... ...! Journalists should always c... ... their ... at a protest to ... ... and should wear ... ..., if possible, to tip the r... ... or ... ... calculation in their favor! Search Supreme Court uses a ...-p... test established in Katz v. United States to determine the r... of a ... under the ... ... The test considers: 1. Whether a person had an a..., ... ... of ... 2. Whether the ... of ... was one that s... is prepared to recognize as ... R... is the "ultimate touchstone" of the ... ... and is c...-s...: Although the ... ... generally requires a c...-... ... before a government can search a ... or their ..., the Supreme Court recognized certain e... where the in... of the search on a person's ... is outweighed by the ... in...! -Common e... include v... c..., "e.." or u... c..., and s... conducted d... (or "in... to") an a...! Due to frequency of ... at protests, the s...-in...-to-... e... is particularly important for journalists to be aware of! -During these searches, police can s... for and/or s... "e..." in the area within the arrestee's "im... c..." from which they could reach a ... or d... e... -Supreme Court later broadened the scope of a permissible s...-in...-to-a... to personal property "im... associated with the p... of the arrestee" finding the search of a p... of c... found on an arrestee reasonable despite lack of concern regarding w... or d... evidence Riley v. California (2014) -Law enforcement generally cannot use the s...-in...-to-a... e... to search the contents of ...! -The Riley decision has profound implications for journalists. In addition to text messages, call logs, emails, web history, and GPS location data, a journalist's ... might contain c... in... for s..., r... n... and d..., ... and ... r..., and p... related to their ... ... right to gather news! Absent v... ... or a case-specific e... ..., law enforcement cannot search a journalist's ...! Law enforcement CAN however ... it, ... it for p... t..., and ... it while a w... is pending to search its contents! During an arrest, law enforcement can also search the im... s... a... and ... p... im... associated with the journalist's ... such as an e... b..., even without a s... or e... p... justification Though Riley didn't decide whether the ... ... permits searches of data on other d..., such as ... c..., incident to ..., the Supreme Court has suggested the treatment of other ... should be the same since ... can "just as easily be called ..., v... p..., r..., c..., t... r..., l..., d..., a..., t..., m... or n..." -At least one state court has been hesitant to extend the Riley holding to ... c... and instead decided the issue under its s... c... -Absent f... g... from the Supreme Court, protections against law enforcement searches of d... on d... other than ... will likely ... by j...! Supreme Court also recently expanded p... p... for n... a... with its decision Carpenter v. United States Court held the ... ... requires the government to obtain a ... to access h... c... l... r... held by w... c..., extending protections to t...-p... r... for the first time! This decision strengthens journalists' ability to gather information and inform the public by preventing the government from unreasonably securing l... d... that can expose a j... m..., u... s..., and r... s... the journalist is reporting

Fourth Amendment Protections The Fourth Amendment protects the rights of the people to be secure against unreasonable searches and seizures. Journalists are entitled to this qualified right of personal security on city streets during protests. In fact, the Supreme Court has held that 4A limitations must be "scrupulously (very carefully) observed" in cases involving information protected by the 1A. Journalists often include 4A claims in civil actions against law enforcement for lack of probable cause to arrest and unlawful seizure of recording equipment. Seizure The Supreme Court has described the seizure of property as a "meaningful interference with an individual's possessory interest." Seizure can also be of an individual's person, as when law enforcement restrains one's ability to walk away. Officers must have probable cause to believe an individual is committing a crime before making an arrest. However, in Terry v. Ohio, the Supreme Court held law enforcement could briefly detain and "frisk" [an officer passing their hands over an individual to search them] an individual for weapons, consistent with the 4th Amendment, so long as the officer has a "reasonable suspicion" the individual is armed and dangerous. This "reasonable suspicion" standard requires LESS than the "fair probability that contraband or evidence of a crime will be found (the standard of probable cause required to arrest)" but MORE than an "inchoate [rudimentary] and unparticularized suspicion or 'hunch'" The stop must be justified at the time it occurs, reasonably related in scope to the circumstances that justified the stop, and conducted using the least intrusive means reasonably available. Officers can consider contextual characteristics like presence in a "high crime area" in assessing reasonable suspicion, though by itself an individual's mere presence in an area of suspected criminal activity is insufficient. During Terry stops, law enforcement can ask people to identify themselves, though whether they are obligated to respond depends on the state they are in. At protests, law enforcement cannot stop and frisk protestors or journalists without an objective, reasonable belief they are armed and dangerous. If journalists are dispersed in a crowd of protestors, and the protest turns violent, however, the risk of a Terry stop (or arrest for that matter) is heightened. During a Terry stop, law enforcement may temporarily seize journalists' equipment, though such a seizure typically requires an arrest supported by probable cause. Journalists should always clearly identify their purpose at a protest to law enforcement and should wear press credentials, if possible, in order to tip the reasonable suspicion or probable cause calculation in their favor. Search The Supreme Court uses a two-prong test established in Katz. v. United States to determine the reasonableness of a search under the 4A. The test considers: 1. Whether a person had an actual, subjective expectation of privacy 2. Whether the expectation of privacy was one that society is prepared to recognize as reasonable Reasonableness is the "ultimate touchstone" of the Fourth Amendment and is context-specific. Although the 4A generally requires a court-issued warrant before the government can search a person or their property, the Supreme Court recognized certain exceptions where the intrusion of the search on a person's privacy is outweighed by the government interest. Common exceptions to the warrant requirement include voluntary consent, "exigent" or urgent circumstances, and searches conducted during (or "incident to") an arrest. Due to the frequency of arrests at protests, the search-incident-to-arrest exception is particularly important for journalists to be aware of! During these searches, police can search for and/or seize "evidence" in the area within the arrestee's "immediate control" from which they could reach a weapon or destructible evidence. The Supreme Court late broadened scope of a permissible search-incident-to-arrest to personal property "immediately associated with the person of the arrestee" finding the search of a package of cigarettes found on an arrestee reasonable, despite lack of concern regarding weapons or destructible evidence. As of the Supreme Court's 2014 decision in Riley v. California, law enforcement generally cannot use the search-incident-to-arrest exception to search the contents of cellphones. The Riley decision has profound implications for journalists. In addition to text messages, call logs, emails, web history, and GPS location data, a journalist's cellphone may contain contact information for sources, reporting notes and drafts, audio and video recordings, and photographs related to their 1st Amendment right to gather news. Absent voluntary consent or a case-specific exigent circumstance, law enforcement cannot search a journalist's cellphone. Law enforcement can, however, seize it, examine it for physical threats, and secure it while a warrant is pending to search its content. During an arrest, law enforcement can also search the immediate surrounding area and personal property immediately associated with the journalist's person such as an equipment bag, even without a safety or evidence preservation justification. Although Riley did not decide whether the 4A permits searches of data on other devices, such as digital cameras, incident to arrest, the Supreme Court has suggested that treatment of other devices should be the same, since cellphones can "just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers" Nonetheless, at least one state court has been hesitant to extend the Riley holding to digital cameras and instead decided the issue under its state constitution. Thus, absent further guidance from the Supreme Court, protections against law enforcement searches of data on devices other than cellphones will likely VARY by jurisdiction The Supreme Court also recently expanded privacy protections for newsgathering activities with its decision in Carpenter v. United States. The Court held the 4A requires the government to obtain a warrant to access historical cellphone location records held by wireless carriers, extending protections to third-party records for the time. This decision strengthens journalists' ability to gather information and inform the public by preventing the government from unreasonably securing location data that can expose a journalist's movements, unmask sources, and reveal the stories the journalist is reporting.

Definitions of Obscenity Miller Test (1973-Present) Three elements 1. An ... ..., applying ... ... ... ..., finds that the work, taken as a ..., appeals to a ... ... in sex (... ... = not a child - would be offensive to a regular person, takes the decision out of the hands of the ... - consider outside what you believe [no gut judgment on your own tastes]) (More specific) 2. The work depicts in a ... ... way sexual conduct specifically defined by ... ... ... (The ... must define what is ... ... at the ... level) 3. The work in question lacks serious ..., ..., ... or ... ... (Expert testimony becomes important! Says it has ..., heightens level of requirement of ...) 1. Who is an "average person"? ... ... or ... determines! Similar to "... person" in ... of ... law, not ... ... of ... or ... 1. What is "prurient interest"? "... or ... interest in ..., ... or ..." -Not just ... or ...! Two considerations 1. Work in question must be taken as a ... 2. Prurient interest is only about ..., not ... (would this not also corrupt minds, if not more? says a lot about our culture and what we accept) 1. Community Standards Local standards are ... and ... specific Example: the community standards in Tuscaloosa are different from Birmingham are different from San Francisco are different from San Diego Obscenity will mean ... things in ... places! "... ..." Prosecutor wants to bring someone up on obscenity charges. Pick a rural, religious county versus a liberal jurisdiction known for its openness in sexuality [The ... chooses the ...; Favors ...] ... decides community standards -Not ... ..., but speculation about what other ... in their ... would accept and tolerate "..." Defense can use this strategy to get jury on their side. Other people in your community find something ... OK Example: Hustler magazine is being scrutinized, defense lawyers may go to a pornography shop in the community and find they exhibit similar content and images as Hustler! Compare to what is already sold in the community, make implication on what the community is willing to accept! 2. Patent Offensiveness -... laws are supposed to define the kinds of material or conduct that are ... as obscene -Many ... follow former Chief Justice Rehnquist's description: "representations or descriptions of ... ... acts, ... or ..., ... or ..." and "representations or descriptions of ..., ... functions, and ... ... of ..." 3. Serious Value -To be obscene, a work must "lack serious ..., ..., ..., or ... ..." -More ... than the "utterly without redeeming social value" element of the Roth-Memoirs test -Test is not whether an ... ... in the community would find value, but whether a ... ... ... find value

Average person, contemporary local community standards, prurient interest Average person, jury Patently offensive, applicable state law State, patently offensive, state Literary, artistic, political, scientific value Merit, expertise Trial judge or jury "Reasonable" invasion of privacy, personal opinion of judge or jury "Shameful or morbid interest in nudity, sex, or excretion" Not just sex or nudity Whole Sex, violence State and locale Different, different "Venue shopping" Government, venue Prosecutors Jury Personal opinion, adults, community "Comparables" Comparable -State, prohibited -States -Ultimate sexual, normal or perverted, actual or simulated; masturbation, excretory functions, lewd exhibition of genitals Literary, artistic, political, scientific value Narrow Ordinary person, reasonable person could

FOIA Exemptions (9 Statutory Exemptions) Agency: We have this record and you may ask for it, but we will not give it to you 1. ... ... matters Example: Troop positions, securing US' place in the world. How to build a nuclear bomb 2. ... materials Example: Not actual reports but part of perpetuance of an agency 3. Material exempted by ... 4. ... ... Example: Say you have a new company, financial information handed over to government (Securities and Exchange Commission) or any information that may lead to competitive thievery (a recipe for Coke) 5. ... .../l...-... ... materials 6. ... ... files Example: Apply for a job and give the employer your SSN, emergency contacts, beneficiaries 7. ... ... records - not all records 8. ... ... materials 9. ... data Example: Assessment of oil reserves - company in exploratory drilling, may access. Are limitations to these records to prevent competitive advantage/disadvantage Exemption 1: National security matters Matters specifically authorized under criteria established by an ... ... to be kept ... in the interest of ... ... or ... ... and in fact properly classified pursuant to such an ... ... Example: President writes an ... ... (first blank) to classify materials on CIA satellite surveillance of another country. President signs, making the classified information top-secret Three tiers 1. ... (lowest level) 2. ... (if disclosed can cause serious damage to national security) 3. ... ... (highest level, exceptionally grave damage to national security) [Idea that possessing ... ... files could put troops and spies in danger! U.S. at risk in damaging diplomatic relations] Agencies have burden to justify ..., but courts are deferent to Exemption 1 claims if agency: 1. Describes justifications for nondisclosure in ... ... detail 2. Demonstrates the information withheld ... f... within ... 3. Is not contradicted by evidence in the ... or evidence of ... ... ... ... Refusing to confirm or deny the existence of records because such confirmation/denial would cause harm that applies to an exemption (Exemption 1) Some things the government does that even acknowledging the existence of such documents (by denying access for example) could cause harm applicable to Exemption 1 Exemption 2: Housekeeping materials Matters related solely to the ... ... r... and p... of an agency Conditions of employment like: ... and ..., ... and ... rules, ... packages and ... Example: Cannot have access to records - wondering who else applied for the job you wanted and then got it -... applied and not ... used Has this government worker who has been suspended been suspended before? Exemption 3: Material exempted by statute 3 parts 1. Is there a specific statute that ... or ... the ... of information? 2. Does the statute designate specific ... of information or outline specific ... for information that may be ...? 3. Does the record or information that is sought fall within the ... of information that may be ...? What is the other law saying? Example: In 1984 Congress voted to exempt all ... ... files from release under FOIA (due to a 1947 statute - a specific federal law that exempted ... from FOIA)

FOIA Exemptions 1.National security matters 2.Housekeeping materials 3.Material exempted by statute 4.Trade secrets 5.Working papers/lawyer-client privileged materials 6.Personal privacy files 7.Law enforcement records 8.Financial institution materials 9.Geological data 1) National security matters -Matters specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and in fact properly classified pursuant to such an executive order. Three tiers: confidential, secret, top secret. -Agencies have burden to justify nondisclosure, but courts deferent to Exemption 1 claims if agency: 1. Describes justifications for nondisclosure in reasonably specific detail 2. Demonstrates the information withheld logically falls within exemption 3. Is not contradicted by evidence in the record or evidence of bad faith Glomar Responses 2) Housekeeping materials -Matters related solely to the internal personnel rules and practices of an agency Hiring and firing, work and disciplinary rules, compensation packages and benefits -Narrowly applied, often 3) Material exempted by statute 1. Is there a specific statute that authorizes or requires the withholding of information? 2. Does the statute designate specific kinds of information or outline specific criteria for information that may be withheld? 3. Does the record or information that is sought fall within the categories of information that may be withheld? Example: In 1984 Congress voted to exempt all CIA operational files from release under FOIA.

Who is a Journalist? When the privilege was developed in the 1970s, 80s the definition of a journalist was relatively c... - a journalist was someone who g... n... for a n... m... In the 21st century, virtually anyone can report the news. Should anyone who uses the Internet to spread information be regarded as a journalist for purposes of the law? This issue hasn't been resolved definitively but some courts have attempted to solve the dilemma Example: -Mark Madden was a professional wrestling commentator who "broadcast" his commentary via 900-number telephone calls. To listen to these messages callers paid $1.69 a minute. World Championship Wrestling owned the line and paid Madden $350/week to operate it. During a commentary Madden reported World Wrestling Federation, arch rival, was in serious financial difficulty. WCW and WWF were suing each other, claiming unfair competition. Madden was subpoenaed to testify about the sources of his report on WWF's financial difficulties. Madden raised the ... ... p..., claiming he was a journalist entitled to c... protection. A U.S. District Court agreed in 1997, but a U.S. Court of Appeals overturned the lower-court decision in 1998. The appellate judges said Madden was an e... disseminating h..., not n..! In ruling Madden was not a journalist, the three-judge panel from the 3rd Circuit defined a journalist (for the application of the p...): A journalist is one who... -Engages in i... r... -G... n... -Possess the i... at the beginning of the n...-... process to d... this n... to the ...! Example: -2nd Circuit issued an opinion in Chevron Corp. v. Berlinger, held individuals who try to assert a j... p... to protect from in-court disclosure information they gathered during an investigation must prove they in fact gathered information for "purposes of i... r... and c..." Attempts of oil company Chevron to obtain outtakes from a documentary film by Berlinger. B asserted he was a journalist and claimed a p... not to give the outtakes to Chevron, which wanted them to help it in separate litigation in which it was involved. 2nd Circuit rejected B's argument and affirmed a trial court's ruling that B's making of the film was not i... but had been s... by a p... p... for purposes of telling that p... p...'s s... and B had made changes at the insistence of the p... p... -Though it noted "a person need not be a c... r... working for an e... p... e... to establish entitlement to the p...," 2nd Circuit stressed in collecting the information, the person must have acted "in the role of the i... p..." The bottom line is that individuals seeking a j... p... should be i... and free from c... of ... that compromise objective reporting! Example: -Supreme Court of NH held that a Web site operated by a company called Implode, which ranks businesses in the mortgage industry and allows registered visitors to post public comments about lenders, fell within the scope of that state's recognition of a j...'s p... not to reveal sources. The court wrote "the fact Implode operates a web site makes it no less a member of the press. We conclude that Implode's web site serves an informative function and contributes to the flow of information to the public. Thus, Implode is a reporter for the purposes of the n...-g... p... An intriguing issue involving the question of "Who is a journalist" for purposes of both s... s... laws and the ... ... j... p... centers on the status of b...! -California appellate court concluded in O'Grady v. Superior Court that the publishers of two Web sites - PowerPage and Apple Insider - carrying information about Apple computers and other Apple products were entitled to protection under both California's ... law as well as the ... ... and state ... -Apple had subpoenaed the operators of both Web sites in order to find out who leaked to them secret plans to release a particular computer device. The Web site operators argued they were acting as publishers, editors and reporters in posting the information on their sites and thus didn't need to reveal the names of their sources -Both the CA ... law and s... c... protect "a publisher, editor, reporter or other person connected with or employed upon a newspaper, magazine or other periodical publication" from disclosing sources of information. The p... l... includes newspapers and magazines but is silent about W... p... and d... m...! In holding, however, that this language protected the Web operators of PowerPage and Apple Insider, the appellate court wrote these sites "came into possession of, and conveyed to their readers, i... those readers would find of c... i..." and noted "in no relevant respect do they appear to differ from a r... or e... for a t... business-oriented p... who solicits or otherwise comes into possession of confidential internal information about a company." -The court added the Web sites differed from traditional news periodicals "only in their t..., which flows directly from the advanced tech they employ, to c... u... their content." -Turning to the ... ... claim of protection, the court found "no sustainable basis to distinguish from the r..., e..., and p... who provide news to the public through t... p... and b... m..." adding they "g..., s... and p..., for purposes of p... to a m... a..., information about current events of interest and concern to that audience." It remains to be seen how many other courts will take such a pro-j..., pro-b... approach Telephone Records Reporters' telephone records provide a trail of numbers that could reveal the i... of c... n... s...! (Government agents and attorneys can seek through the use of subpoena) Example: New York Times Co. v. Gonzales -Federal appellate court considered a federal grand jury subpoena seeking 11 days' worth of telephone records of two NYT reporters who had investigated a secret government plan to freeze the assets of two Islamic charities that allegedly funded terrorism. The subpoenas were served on the t... s... p... of The Times as part of an investigation to find out who leaked and disclosed without authorization the government's plans. -The appellate court initially held that "whatever r... a newspaper or reporter has to r... d... in response to a s... extends to the newspaper's or reporter's telephone records in the possession of a t... p... p..." "The telephone is an essential tool of modern journalism and plays an integral role in the collection of information by reporters" and thus "any ... l... or ... ... p... that protects the reporters also protects their t... p... telephone records sought by the government" -BUT the appellate court also held that whatever ...-law p... might protect reporters in such cases, it is a q... (l...) p... OVERCOME on the facts of this case by the need of the government "The government has a compelling interest in maintaining the secrecy of imminent asset freezes or searches lest the targets be informed and spirit away those assets or incriminating evidence. At stake in the present investigation, therefore, is not only the important principle of secrecy regarding imminent law enforcement actions but also a set of facts - informing the targets of those impending actions - that may constitute a serious obstruction of justice." -In ordering the review of the phone records, the court added reporters "are the o... w... - other than the s... - available to i... the conversations in question and describe the circumstances of the leaks" and "the reporter's actions are c... to (and probably c...) the grand jury's investigation." The court flatly rejected the newspaper's arguments the ... ... protected the reporters, reasoning the Supreme Court precedent...? Controlled (it too was a g... ... setting) and did not provide any p... against g... ... s... Nearly three decades before Gonzales, different appellate court also dealt blow to journalists (Reporters Committee for Freedom of the Press v. American Telephone and Telegraph Co.) - journalists have no more ... ... rights in their toll-call records in the hands of t... p... than records of t... p... airlines, hotels, taxicabs

Who is a Journalist? When the privilege was developed in the 1970s and 80s, the definition of a journalist was relatively clear - a journalist was someone who gathered news for a news medium. In the 21st century, virtually anyone can report the news or what they might refer to as the news. Should anyone who uses the Internet to spread information be regarded as a journalist for purposes of the law? This issue hasn't been resolved definitively, but some courts have attempted to solve the dilemma! Mark Madden was an irrepressible professional wrestling commentator who at one point "broadcast" his commentary via 900-number telephone calls. His commentaries were usually sarcastic, sometimes fanciful and always provocative. To listen to these messages callers paid $1.69 a minute. World Championship Wrestling owned the line and paid Madden $350/week to operate it. During a commentary Madden reported World Wrestling Federation, the archrival of WCW, was in serious financial difficulty. WCW and WWF were suing each other, claiming unfair competition. Madden was subpoenaed to testify about the sources of his report on WWF's financial difficulties. Madden raised the 1A privilege, claiming he was a journalist entitled to constitutional protection. A U.S. District Court agreed in 1997, but a U.S. Court of appeals overturned the lower-court decision in 1998. The appellate judges said Madden was an entertainer disseminating hype, not news. In ruling Madden was not a journalist, the three-judge panel from the 3rd Circuit defined a journalist (for purposes of application of the privilege) in this fashion: A journalist is one è Who engages in investigative reporting è Who gathers news, and è Who possesses the intent at the beginning of the news-gathering process to disseminate this news to the public! Box: Independent gathering and reporting: A "crude" key for defining who is a journalist 2011, 2nd Circuit issued an opinion in Chevron Corp. v. Berlinger in which it held individuals who try to assert a journalistic privilege to protect from in-court disclosure information they gathered during an investigation must prove they in fact gathered that information for "purposes of independent reporting and commentary" The dispute centered on the attempts of oil company Chevron to obtain outtakes (scenes not included) from a documentary film titled "Crude" by Berlinger. B asserted he was a journalist and claimed a privilege not to give the outtakes to Chevron, which wanted them to help it in separate litigation in which it was involved. 2nd Circuit rejected B's argument and affirmed a trial court's ruling that B's making of the film was not independent but had been solicited by a private party for purposes of telling that private party's story and B had made changes in "Crude" at the insistence of the private party. Though it noted "a person need not be a credentialed reporter working for an established press entity to establish entitlement to the privilege" 2nd Circuit stressed that in collecting the information in question, the person must have acted "in the role of the independent press" The bottom line is that individuals seeking a journalistic privilege should in line with a key ethical journalistic tenet, be independent and free from conflicts of interest that compromise objective reporting!!! 2010, Supreme Court of NH held that a Web site operated by a company called Implode, which ranks businesses in the mortgage industry and allows registered visitors to post public comments about lenders, fell within the scope of that state's recognition of a journalist's privilege not to reveal sources. The court wrote in Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. that "the fact Implode operates a web site makes it no less a member of the press. We conclude that Implode's web site serves an informative function and contributes to the flow of information to the public. Thus, Implode is a reporter for the purposes of the newsgathering privilege. An intriguing issue involving the question of who is a journalist, for purposes of both state shield laws and the 1A journalistic privilege protection, centers on the status of bloggers! 2006, California appellate court concluded in O'Grady v. Superior Court that the publishers of two Web sites - O'Grady's PowerPage and Apple Insider - carrying information about Apple computers and other Apple products were entitled to protection under both California's shield law as well as the 1A and state constitution. Apple had subpoenaed the operators of both Web sites in order to find out who leaked to them Apple's secret plans to release a particular computer device. The Web site operators argued they were acting as publishers, editors and reporters in posting the information on their sites and thus didn't need to reveal the names of their sources. By their terms, both the CA shield law and state constitution protect "a publisher, editor, reporter or other person connected with or employed upon a newspaper, magazine or other periodical publication" from disclosing sources of information. Notice how the precise language includes newspapers and magazines but is silent about Web pages and digital media. In holding, however, that this language protected the Web operators of PowerPage and Apple Insider, the appellate court wrote these sites "came into possession of, and conveyed to their readers, information those readers would find of considerable interest" and noted "in no relevant respect do they appear to differ from a reporter or editor for a traditional business-oriented periodical who solicits or otherwise comes into possession of confidential internal information about a company." The court added the Web sites differed from traditional news periodicals "only in their tendency, which flows directly from the advanced tech they employ, to continuously update their content." Turning to the 1A claim of protection, the court found "no sustainable basis to distinguish [the Web site operators] from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media" adding they "gather, select and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience." It remains to be seen how many other courts will take such a pro-journalist, pro-blogger approach. Telephone Records The names of confidential news sources, reporters' notes, video and photographs are not the only records that have been sought by government agents and attorneys through the use of subpoena. In particular, reporters' telephone records provide a trail of numbers that could reveal the identity of confidential news sources! 2006, federal appellate court in New York Times Co. v. Gonzales considered a federal grand jury subpoena seeking 11 days' worth of telephone records of two NYT reporters who had investigated a secret government plan to freeze the assets of two Islamic charities that allegedly funded terrorism. The subpoenas were served on the telephone service providers of The Times as part of an investigation to find out who leaked and disclosed without authorization to the reporters the government's plans. The good news for The Times' reporters was the appellate court initially held that "whatever rights a newspaper or reporter has to refuse disclosure in response to a subpoena extends to the newspaper's or reporter's telephone records in the possession of a third party provider." The court reasoned "the telephone is an essential tool of modern journalism and plays an integral role in the collection of information by reporters" and thus "any common law or 1A protection that protects the reporters also protects their third party telephone records sought by the government." But the bad news was the appellate court also held that whatever common-law privilege might protect reporters in such cases, it is a QUALIFIED (LIMITED) PRIVILEGE overcome on the facts of this case by the need of the government "The government has a compelling interest in maintaining the secrecy of imminent asset freezes or searches lest the targets be informed and spirit away those assets or incriminating evidence. At stake in the present investigation, therefore, is not only the important principle of secrecy regarding imminent law enforcement actions but also a set of facts - informing the targets of those impending actions - that may constitute a serious obstruction of justice." In ordering the review of the phone records, the court added reporters "are the only witnesses - other than the source(s) - available to identify the conversations in question and describe the circumstances of the leaks" and "the reporter's actions are central to (and probably caused) the grand jury's investigation. Their evidence as to the relationship of their source(s) and the leaks themselves is critical to the present investigation." The court also flatly rejected the newspaper's arguments the 1A protected the reporters, reasoning the Supreme Court precedent from Branzburg v. Hayes controlled (it too was a grand jury setting) and did not provide any privilege against grand jury subpoenas. Nearly three decades before, a different appellate court also had a dealt a blow to journalists in Reporters Committee for Freedom of the Press v. American Telephone and Telegraph Co. The Reporters Committee case, as the appellate court in NYT Co. v. Gonzales interpreted it 28 years later, suggested that journalists have no more 1A rights in their toll-call records in the hands of third parties than they have in the records of third party airlines, hotels, or taxicabs" Summary In recent years more and more reporters have been called to testify in legal proceedings. Often they are asked to reveal confidential information to aid police in criminal investigations, to assist in the defense of a criminal defendant, or to help a libel plaintiff establish negligence or actual malice. Failure to comply with a court order can result in a citation for contempt of court. The U.S. Supreme Court ruled in 1972 (Branzburg v. Hayes) reporters were like all other citizens: They did not enjoy a 1A privilege that permitted them to refuse to testify before a grand jury! Despite this high court ruling, the lower federal courts and state courts have fashioned a constitutional, common-law privilege that often protects a journalist who has been subpoenaed to testify at a legal hearing. The privilege is qualified! In many instances a court will not require a journalist to testify unless the person seeking the info held by the journalist can demonstrate that the reporter has info that is relevant to the hearing, that there is a compelling need for the disclosure of this information and that there are no alternative sources for this info. Courts tend to apply this three-part test differently in different types of legal proceedings. Journalists are most likely to escape being forced to testify in a civil suit, especially if the reporter is not a party to the suit in some way. Reporters are more likely to be forced to testify in a criminal case, but there are numerous examples of reporters being granted a qualified privilege to escape such testimony as well. Reporters called to testify before a grand jury, however, usually are required to honor the subpoena. More and more courts re seeking journalists' testimony regarding nonconfidential information, and the law is of substantially less protective value in these cases. Two appellate courts have ruled the records of telephone calls made by journalists may also be subpoenaed to further legitimate law enforcement proceedings.

Exemption 7: Law Enforcement Records or information compiled for law enforcement purposes, but only to the extent the production of such law enforcement records or information (A) could reasonably be expected to ... with enforcement p... (B) would deprive a person of a right to a ... ... or an im... adjudication (***C) could reasonably be expected to constitute an u... ... of ... (D) could reasonably be expected to disclose the id... of a ... ..., including a state, local, or foreign agency or authority or any private institution which furnished information on a ... basis, and in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by ... ... (***E) would disclose t... and p... for law enforcement in... or p..., or would disclose g... for law enforcement in... or p... if such disclosure could reasonably be expected to risk ci... of the law or (F) could reasonably be expected to e... the l... or p... s... of any individual Exemption 7 provides an agency a ... exception to the general rule of access! Like Exemption 6, Exemption 7 requires a ...-tiered test in its application: Tier 1/Question 1 (often called the t... question): Was the information or record sought compiled for ... ... purposes? If the government is unable to show the records were compiled for ... ... purposes, the exemption will not apply! But the courts are willing to grant government w... l... in applying the test. The key question Is whether information is being used for ... ... purposes when the ... to the FOIA inquiry is sent to the person seeking the data! Law enforcement agencies are not given c... d... to designate any record they choose as one gathered for ... ... purposes! Example: Rosenfeld sued DOJ and FBI to gain access to records of FBI investigations at UC in the early 1960s when the Free Speech Movement challenged university administration's regulations barring political activities on campus. The federal agencies argued the material had been gathered for the purpose of examining whether the student movement had been captured from within by communists. The 9th Circuit agreed though some of the material sought had indeed been gathered for legitimate ... ... purposes, other records were gathered long after the need for such an investigation ceased to exist. The ... ... purpose argument was only a pretext invoked to pursue routine monitoring of many individuals and to shield the harassment of political opponents of the FBI But information compiled for ... ... purposes may still be accessible under FOIA Tier 2/Question 2: The court must determine whether the release of the material would result in one of the ... c... outlined in the exemption; for example, would the release of the information be expected to ... with law enforcement p... or deprive the person of a right to a ... ...? Congress amended Exemption 7 in 1986 and gave ... law enforcement agencies far ... authority to refuse FOIA requests; Courts have read the exemption in an e... manner - giving the FBI, Secret Service, Drug Enforcement Administration and other ... police agencies even ... legal excuses to deny access to information they possess Example: Supreme Court (1989) agreed the release of computerized arrest records ("r... s...") held by the FBI could reasonably be expected to constitute an u... ... of p... .... The r... s... contain information indicating arrests, indictments, acquittals, convictions and sentences on about 24 million people in the nation. Some of this material is highly sensitive, but much of it has been ... previously when individuals were being processed in the criminal justice system. All of these data are available from ... and ... law enforcement agencies across the nation. FBI has simply put together all the bits of data about an individual held by various police agencies into a single, computerized file National Archives and Records Administration v. Favish (2004) -Exemption 7(...) prevented the release to Favish of certain ...-s... ... of a deputy counsel to President Clinton -Favish wanted the photos because he questioned the government's findings that Foster's death was a suicide; he believed the government investigations of his death were "grossly incomplete and untrustworthy" -Foster's family members objected to the release of the ...; argued the ... should be shielded by Exemption 7(...) to secure their own ... rights Ruling for Foster's immediate relatives, high court initially held Exemption 7(...) permits surviving family members to assert their own ... rights against ... in... when it comes to ...-... ... of their immediate relatives. Court then turned to whether the release of the ... would be an u... ... on the ... rights of those family members "Where there is a ... interest protected by Exemption 7(...) and the ... interest being asserted is to show that responsible officers acted negligently or improperly in the performance of their duties, the requester must establish more than a b... ... to obtain disclosure. The requester must produce evidence that would warrant a belief by a ... p... that the alleged Government impropriety might have occurred" Favish had not met this burden! Example: Federal appellate court addressed whether Exemption 7(...) would prevent the release to a newspaper that covers prison issues copies of certain a... ... and a ... taken by BOP personnel that showed the m... b... of an inmate (Estrella) who was savagely ... by two inmates -Parties in case agreed the ... interests at stake were those of Estrella's surviving family members 10th Circuit looked to Favish as precedent. The appellate court noted the records sought unquestionably reflected "...-... ..." -Appellate court characterize Estrella's family having a "h..." ... interest in the ... and ...; though they were publicly displayed during criminal trial of inmates, appellate court still found Estrella's family possessed a ... interest because after the trial they were no longer publicly available and Estrella's family members did not take any affirmative actions placing the ... back in the public domain After recognizing the family's ... interest, appellate court needed to weigh and balance the alleged ... interest in the ... Prison Legal News asserted the images would (1) shed light on the BOP's performance of its duty to protect prisoners from violence by other prisoners and (2) help the public better understand the prosecutor's decision to seek the death penalty against his killers -The appellate found these interests ..., observing the "video does not begin until Estrella has already been ... and therefore does not depict any BOP conduct prior to his ..." and that during the trial of killers, "The length of time between the beginning of the video and the time BOP personnel extracted [killers] was publicly known. Thus, all aspects of the video documenting BOP's response to the situation have been f... d..." -The court added the content of all of the images was w... r... by the news media during the trial. 10th Circuit concluded that "to the extent any additional information can be gained by release of ... , the ... interest in that additional info is outweighed by the Estrella family's ... interests" It thus held Exemption 7(...) and the family's ... interests prevailed - the ... and ... in question would be permanently sealed Exemption 7(...) only applies to ...! (FCC v. AT&T Inc.) C... do not possess "p... ..." rights for the purpose of this exemption Federal court ruled the FEC ... withhold a study that assessed the vulnerability of the Commission's IT services or emails related to the study, citing FOIA Exemption 7(...). The Center for Public Integrity requested the info, but FEC denied the request. The court noted there was a rational nexus because the FEC could not carry out its l... ... f... without a secure and reliable IT system. The judge noted the FEC's IT system contained sensitive information related to in..., including "subpoenas, requests for information, reports of in..., and responses to Commission-issued subpoenas and requests" In addition, the court ruled there was a connection between the study and possible security risks or violations of federal law

7. Law Enforcement Exemption #7: Records or information compiled for law enforcement purposes, but only to the extent the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (***C) could reasonably be expected to constitute an unwarranted invasion of privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by confidential source, (***E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual. Exemption 7 provides an agency a BROAD exception to the general rule of access. Like Exemption 6, Exemption 7 requires a two-tiered test in its application. The first tier or question (what lawyers or judges often call the threshold question): 1. Was the information or record sought compiled for law enforcement purposes? If the government is unable to show the records were compiled for law enforcement purposes, the exemption doesn't apply. But the courts are generally willing to grant government wide latitude in applying the test. Key question is whether information is being used for law enforcement purposes when the response to the FOIA inquiry is sent to the person seeking the data. Law enforcement agencies, however, are not given complete free (carte blanche) discretion to designate any record they choose as one gathered for law enforcement purposes. Rosenfeld sued DOJ and FBI to gain access to records of FBI investigations of faculty, students and journalists at UC in the early 1960s when the so-called Free Speech Movement challenged university administration's regulations barring political activities on campus. The federal agencies argued the material had been gathered for the purpose of examining whether the student movement had been captured from within by communists. The 9th Circuit agreed though some of the material sought by Rosenfeld had indeed been gathered for legitimate law enforcement purposes, other records were gathered long after the need for such an investigation ceased to exist. The law enforcement purpose argument was only a pretext, the court said, invoked to pursue routine monitoring of many individuals and to shield the harassment of political opponents of the FBI. Information compiled for law enforcement purposes may still be accessible under FOIA. 2. The court must determine whether the release of the material would result in one of the six consequences outlined in a through f in the exemption; for example, would the release of the information be expected to interfere with law enforcement proceedings or deprive a person of a right to a fair trial? Congress amended Exemption 7 in 1986 and gave federal law enforcement agencies far broader authority to refuse FOIA requests. Courts have read the exemption an expansive manner, giving the FBI, Secret Service, Drug Enforcement Administration and other federal police agencies even more legal excuses to deny access to information they possess. Example: 1989, Supreme Court agreed the release of computerized arrest records (often called "rap sheets") held by the FBI could reasonably be expected to constitute an unwarranted invasion of personal privacy. The rap sheets contain information indicating arrests, indictments, acquittals, convictions and sentences on about 24 million people in the nation. Some of this material is highly sensitive, but much of it has been publicized previously when individuals were being processed in the criminal justice system. All of these data are available from state and local law enforcement agencies across the nation. FBI has simply put together all the bits and pieces of data about an individual held by various police agencies into a single, computerized file. U.S. Supreme Court held in 2004, National Archives and Records Administration v. Favish, Exemption 7(c) prevented release to Allan Favish of certain death-scene photographs of Foster Jr., deputy counsel to President Clinton. Favish wanted the photos because he questioned the government's findings that Foster's death was a suicide; he believed the government's investigations of Foster's death were "grossly incomplete and untrustworthy" Foster's family members, though, objected to the release of the photos. They contended their own personal privacy interests would be harmed by such release, and thus they argued the photos were shielded by Exemption 7(c) to secure what the Supreme Court called "their own refuge from a sensation-seeking culture for their own peace of mind and tranquility" In ruling for Foster's immediate relatives, the high court initially held Exemption 7(c) permits surviving family members to assert their own privacy rights against public intrusions when it comes to death-scene images of their immediate relatives. The Court then turned to whether the release of the photos would be an unwanted intrusion on the privacy rights of those family members. Justice Kennedy wrote for the court: "Where there is a privacy interest protected by Exemption 7(c) and the public interest being asserted is to show that responsible officers acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion to obtain disclosure. The requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred." Court concluded Favish had not met this burden 2011, federal appellate court in Prison Legal News v. Executive Office for United States Attorneys addressed whether Exemption 7(c) would prevent the release to a newspaper that covers prison issues copies of certain autopsy images and a videotape taken by Bureau of Prisons (BOP) personnel that showed the mutilated body of an inmate named Joey Jesus Estrella who was savagely killed by two cellmates. The parties to the case agreed the privacy interests at stake were those of Estrella's surviving family members. 10th Circuit looked to Supreme Court's ruling in Favish as precedent. As in Favish, appellate court noted the records sought by the Prison Legal News "unquestionably reflect death-scene images" Describing the images as "gruesome," it specified "photographs depict close-up views of the injuries to Estrella's body and the first portion of the video prominently features Estrella's body on the floor of the prison cell" Appellate court characterized Estrella's family as having a "high" privacy interest in the images and video. Though the images were publicly displayed during the criminal trial of Estrella's cellmates, the appellate court still found Estrella's family possessed a privacy interest in them because after the trial, they were no longer publicly available and because Estrella's family members" did not take any affirmative actions to place the images in the public domain" After recognizing the family's privacy interest, appellate court then weighed and balanced it against the alleged public interest in the images. Prison Legal News asserted the images would (1) shed light on the BOP's performance of its duty to protect prisoners from violence perpetrated by other prisoners and (2) help the public better understand the prosecutor's decision to seek the death penalty against Estrella's killers. The appellate found these interests lacking, observing the "video does not begin until Estrella has already been murdered and therefore does not depict any BOP conduct prior to Estrella's death" and that during the trial of Estrella's killers, "The parties indicated the length of time between the beginning of the video and the time BOP personnel extracted [Estrella's killers] was publicly known. Thus, all aspects of the video documenting BOP's response to the situation have been fully disclosed" The court added the content of all of the images was widely reported by the news media during the trial. 10th Circuit concluded that "to the extent any additional information can be gained by release of actual images for replication and public dissemination, the public's interest in that incremental additional of info over what is already known is outweighed by the Estrella family's strong privacy interests" It thus held Exemption 7(c) and the family's privacy interests prevailed - the images and videotape in question would be permanently sealed. Exemption 7(c) applies ONLY TO PEOPLE; U.S. Supreme Court ruled in FCC v. AT&T Inc. that corporations do not possess "personal privacy" rights for the purposes of this exemption. Only individuals, not corporations, can assert the personal privacy exemption. 2016, federal court ruled the Federal Elections Commission (FEC) could withhold a study that assessed the vulnerability of the Commission's information technology services or emails related to the study, citing FOIA Exemption 7(E). The Center for Public Integrity requested the info in 2015, but FEC denied the request. The court noted there was a rational "nexus" because the FEC could not carry out its law enforcement functions without a secure and reliable IT system. The judge noted the FEC's IT system contained sensitive information related to investigations, including "subpoenas, requests for information and documents, reports of investigation, and responses to Commission-issued subpoenas and requests" In addition, the court ruled there was a connection between the study and possible security risks or violations of federal law.

Intrusion: Publication of Information Obtained Illegally ... information through illegal intrusions is not the way most journalists typically behave. But using information gathered illegally by ... is another matter altogether, and while not common does occur Can a newspaper, station, Web site operator be successfully sued for publishing/b-casting material obtained via an illegal intrusion by a ... ...? Supreme Court ruled...? Bartnicki v. Vopper (2001) Broadcast by a radio station of an audiotape recording of a cell phone conversation between two officials for a teachers' union. Conversation was illegally intercepted and taped by unknown persons and then distributed to the local press. The union officials brought suit under federal wiretap service, makes it violation for anyone to disclose contents of an illegally intercepted communication -Supreme Court decision...? The case presented tough choice between protecting the f... ... of ... in society and individual's right to ... and protection of ... s... -While the majority of Court ruled no ... in broadcasting the tape, Justice Stevens said they ruled so only because the broadcasters in this case played no part in ... or ... the taped conversations and because of the p... ... - not simply the n... - of the content of the conversation Bottom line for Bartnicki... PRESS MAY FREELY PUBLISH IF: 1. The material is ... 2. The material is about matters of ... ... 3. The material is ... ..., even if from a source who ... it ... 4. And unless the government can demonstrate an ... of the ... ...! "Privacy concerns give way when balanced against interest in publishing matters of ... im..." Previous rulings before Supreme Court decision: two U.S. Courts of Appeals and one Maryland state court - all ruled no ... for intrusion so long as it had been ... in... -Maryland example: No evidence reporters either ... inspected the academic records or asked someone else to ... it Remember, nothing protects a journalist who a... makes the il... ... by pilfering documents or intercepting phone conversations or knows information was obtained il... -Florida couple used radio scanner to eavesdrop on conference call of members of Republican congressional leadership, discussing ethics investigation. Couple illegally recorded and gave copy to Rep. McDermott, who sent copies to members of Ethics Committee and played tape for records. U.S. Court of Appeals for D.C. ruled ... ... did not shield congressman from ... under law because he ... who intercepted it and that it had been illegally intercepted And in some cases even the obvious n... of a story might be insufficient to shield a news medium that publishes the contents of illegally obtained material in direct violation of statutes like federal wiretap laws Defending an intrusion by arguing in publishing the info the defendant was serving the ... ..., RARELY succeeds

Intrusion and the Publication of Information Obtained Illegally Gathering information through illegal intrusions is not the way most journalists typically behave. But using information gathered illegally by others is another matter altogether, and while not a common practice does occur. Can a newspaper or station or web site operator be successfully sued for publishing or b-casting material obtained via an illegal intrusion by a third party? The Supreme Court echoing some older lower court decisions, said NO in Bartnicki v. Vopper. The case involved the b-cast by a radio station of an audiotape recording of a cell phone conversation between two officials of a teachers' union. Not-so-veiled threats were made during the conversation against local school board members. The conversation was illegally intercepted and taped by unknown persons and then distributed to the local press. The two union officials brought suit under the federal wiretap service, which makes it a violation for anyone to disclose the contents of an illegally intercepted communication. In a 6-3 ruling, high court acknowledged the case presented a tough choice between protecting the free flow of info in society and individual's right to privacy and protection of private speech. Justice Stevens noted the framers of the Constitution 'didn't foresee the advances in science that produced the conversation, the interception or the conflict' But while the majority of the Court ruled there was no liability for b-casting the tape, the justice said they did so only because the b-casters in this case played no part in intercepting or obtaining the taped conversation and because of the public significance - NOT SIMPLY THE NEWSWORTHINESS - of the content of the conversation. Bottom line for Bartnicki... Press may freely publish 1) TRUTHFUL MATERIAL 2) ABOUT MATTERS OF PUBLIC SIGNIFICANCE 3) THAT IS LAWFULLY OBTAINED, EVEN IF FROM SOURCE WHO OBTAINED IT UNLAWFULLY 4) UNLESS THE GOVERNMENT CAN DEMONSTRATE AN INTEREST OF THE HIGHEST ORDER Majority in Bartnicki ruled in favor of allowing press to b-cast the illegally recorded tape, "in this case, privacy concerns give way when balanced against the interest in publishing matters of public importance" Previous rulings focused on cases in which right-to-privacy intrusion claim was made. In three separate rulings, two by US Courts of Appeals and third by MY state court, judges found no liability for intrusion could be assessed against the publisher of that material so long as it had been obtained innocently. In MY case, several former and current members of UM basketball team sued Washington Evening Star for publishing an article that revealed portions of their academic records. Somebody gave the newspaper the info. There was no evidence the reporters had either personally inspected the records or asked someone else to do it. Consequently, no suit can be maintained by athletes on intrusion theory. But remember, nothing protects a journalist who ACTUALLY makes the illegal intrusion by pilfering documents or intercepting telephone conversations or knows information was obtained illegally. 1996, FL couple used police radio scanner to eavesdrop on conference call among members of Republican congressional leadership, who were discussing an ethics investigation about to take place. The couple illegally recorded the conversation and gave copy of tape to Rep. McDermott, D-Wash., who sent copies to fellow members of Ethics Committee and played tape for reporters. One of those people whose conversations were recorded McDermott under federal wiretap statute. US Court of Appeals for D.C. ruled in 2006 the 1A DIDN'T SHIELD the congressman from lability under the law for disclosing the conversation to newspapers because HE KNEW who intercepted it and it had been illegally intercepted. And in some instances, as noted by high court in Bartnicki case, even the obvious newsworthiness of a story might be insufficient to shield a news medium that publishes the contents of illegally obtained material in direct violation of statutes such as the federal wiretap laws. Beyond just the law, ethical considerations abound as well and must be factored into the equation. Journalists whose decisions to publish or broadcast is based on their own self-serving declaration of 'serving the public good' will not always prevail in the 21st century. Summary Intruding on an individual's solitude, or intrusion, can be an IOP. The legal wrong occurs as soon as the information about the individual is illegally collected. Subsequent publication of the material isn't needed to establish a cause of action, and defending an intrusion by arguing in publishing the information the defendant was serving the public interest rarely succeeds! The plaintiff carries the burden of convincing the court that when the intrusion occurred, they enjoyed a reasonable expectation of privacy. The general rule is there can be no such expectation if the plaintiff is in a public place! Public streets, restaurants, even areas in private businesses normally accessible to the public are NOT PLACES where an individual can reasonably expect to find privacy. The use of hidden cameras and mics frequently prompts intrusion suits, and the courts have viewed such intrusions in various ways, depending on where the info is gathered. But in some jurisdictions the use of such devices is barred by other laws! The subsequent publication or b-cast of material obtained through an intrusion by a third party (NOT the publisher or b-caster) HASN'T BEEN REGARDED AS A VIOLATION OF PRIVACY LAW.

Closed Proceedings Richmond Newspapers v. Virginia (1980) -U.S. Supreme Court -Ruled there was a right under both ... law and the ... ... (... ...) for the public and the press to a... a ... ... Press-Enterprise v. Riverside Superior Court (1986) -Supreme Court extends ... to include other ... ... and ...! -Established the Press-Enterprise Test, which judges must apply before deciding whether a ... or ... can be ...! Press-Enterprise Test ...-and-... (or ...-and-...) test -Determines if a ... or ... is "p... ..." 1. Has this kind of h... (or d...) t... and ... been ... to the press and public? or 2. Will public and press access to this hearing play a ... r... in the f... of the j... process? If the proceeding or document is deemed to be "p... ...," burden shifts to the ... or ... to convince the court there is g... ... to ... the p... or s... the d...: 1. Does closure advance an ... i... that is l... to be ... if the proceeding remains ... or the court permits ... to the document? 2. Is there a s... ... that this interest will be ... if the hearing or document is ... to the press/public? "S... ..." is a ... t...! If proven, ... must: 3. Consider whether there are ... ... to c... If no viable ..., judge must: 4. ... ... the c... so there is an absolute m... of i... with ... of press/public Finally, judge must: 5. Make e... ... to support decision Press-Enterprise Test Summary: 1. Party seeking closure must advance an ... ... that is ... to be ... if the proceeding or document is ... 2. Whoever seeks the closure must demonstrate that there is a "... ..." that this interest will be ... if the proceeding or document remains ... 3. Trial court must consider ... ... to ... 4. If the judge decides that ... is the only reasonable solution, the ... must be ... ... to restrict no more access than is ... ... 5. Trial court must make a... ... and put them into the r... to support the closure decision.

uU.S. Supreme Court, 1980 uRuled there was a right under both common law and the U.S. Constitution (1st Am.) for the public and the press to attend a criminal trial. u1986, Supreme Court extends Richmond to include other judicial proceedings and records. uEstablished the Press-Enterprise Test, which judges must apply before deciding whether a proceeding or record can be closed. uHistory-and-logic (or experience-and-logic) test uDetermines if a proceeding or document is "presumptively open" 1.Has this kind of hearing (or document) traditionally and historically been open to the press and public? or 2.Will public and press access to this hearing play a positive role in the functioning of the judicial process? uIf the proceeding or document is deemed to be "presumptively open," burden shifts to the defendant or government to convince the court there is good reason to close the proceeding or seal the document: 1.Does closure advance an overriding interest that is likely to be harmed if the proceeding remains open or the court permits access to the document? 2.Is there a substantial probability that this interest will be harmed if the hearing or document is open to the press/public? u"Substantial probability" is a high threshold. uIf proven, judge must: 3.Consider whether there are reasonable alternatives to closure uIf no viable alternatives, judge must: 4.Narrowly tailor the closure so there is an absolutely minimum of interference with rights of press/public uFinally, judge must: Make evidentiary findings to support decision 1.Party seeking closure must advance an overriding interest that is likely to be harmed if the proceeding or document is open. 2.Whoever seeks the closure must demonstrate that there is a "substantial probability" that this interest will be harmed if the proceeding or document remains open. 3.Trial court must consider reasonable alternatives to closure. 4.If the judge decides that closure is the only reasonable solution, the closure must be narrowly tailored to restrict no more access than is absolutely necessary. Trial court must make adequate findings and put them into the record to support the closure decision.

The 1A Protection of News Gathering 2. Harassment Example: Federal judge in PA e... the news-gathering activities of two reporters from "Inside Edition" (1996) -Reporters were preparing a story on high salaries paid to corporate executives at U.S. HealthCare while the company was imposing severe cost cutting on patients. Story focused on Abramson and Abramson's daughter and son-in-law (Wolfson's). -Wolfson's argued reporters used am... in..., sh... m... and other el... e... to ... them and invade their privacy after they rejected requests for on-camera interviews. Reporters went so far as to follow their daughter to school and family when they took vacation -Wolfson's sued reporters for tortious stalking, ..., t... and ... of ... (in... upon s...), asked judge to stop the reporters from using the in... news-gathering techniques until j... t... was held -Judge thought the Wolfson's would p... in their lawsuit. "Through their unreasonable su..., ho... and fo..., the reporters had rendered the family captive in their own home -The judge entered a p... ... that barred the reporters from any conduct (with/out the use of cameras) that invades their privacy, actions including but not limited to harassing, hounding, following, intruding, frightening, terrorizing, or ambushing the family -Parties reached settlement and judge dissolved p... ... 3. Fraud -A k... ... statement of a m... or s... fact that is communicated with the intent to induce the plaintiff to r... on that statement and that does, in fact, induce the plaintiff to reasonably r... upon it to the plaintiff's harm or injury Can journalists be held liable for fraud when they try to obtain information by telling a ...? Example: Newspaper editor hears well-founded rumors that a local retail business is cheating its customers. To check out this story, two reporters apply for jobs at business to look what goes on inside. Pair use false names, fake work histories, and tell business owners they are looking for work. Do not reveal they are reporters and will be spying on the other workers at the business Are the reporters' activities legal? -North Carolina jury in 1996 decided ABC journalists ... commit fraud when they lied about their b... and in... to get jobs at a supermarket chain the network was investigating for potential health code violations. -Damage award of $5 million was later ... to $2 when a U.S. Court of Appeals ruled the behavior ... meet the strict legal standard for fraud required by North Carolina statutes -This high-profile case generated more news coverage than the original broadcast, brought into sharp focus the issue of reporters p... to be people they ... so they can s... gather news! In a different ... with a different s... the fraud conviction might be sustained!!! -Example: MN in 1997, WCCO TV and one of its reporters found guilty of both fraud and trespass in situation that m... the ABC case. Reporter lied about b... and r... in... when applying for position as volunteer at care facility for people with IDs. ... videotaped activities at facility and portions of tape later telecast An issue closely related to fraud is IM... by journalists of ... o... to obtain information -Such im... is prohibited by both federal and state laws and ... ... provides no defense Example: A journalist was sentenced to one year probation and 60 hours of community service by federal court for posing as both a federal prosecutor and federal judge's aide to obtain secret legal documents in an espionage case in Cleveland, OH (agreed to plead guilty to one count of im... a f... ... after grand jury indicted him on THREE counts) 4. Failure to Obey Lawful Orders Police and fire officials at scenes of disasters, accidents and fires frequently restrict access of the press and public to the site. Reporters ... respect these rules or face charges of ... c... or worse! Sometimes it isn't always clear whether police orders directed at reporters are indeed ...! Example: Freelance journalist on assignment for news Web site Truthdig was arrested while covering a demonstration in Jefferson City, MO. The journalist livestreamed as a group of demonstrators walked onto a street, linked arms and sat down. Officers arrived to arrest demonstrators. As journalist was photographing arrests, officer ordered him to get onto the sidewalk. He complied, but then approached a second officer to ask about the arrests. Second officer ordered him to get back on the sidewalk, final warning. But the first officer ran toward the journalist and arrested him. Journalist was charged with "failure to obey" and faced max penalty of 90 days in jail or %$1k fine. Prosecutors would drop the charge months after the journalist rejected their offer of a smaller fine along with community service The general rule is the ... ... doesn't give press ... r... of ... to disaster scenes or protect reporters from a... and d... ... charges when they fail to obey lawful commands of police at accident scenes. -BUT at least three states (CA, OH, OR) have statutes that carve out some (though not complete) ... for journalists gathering news in certain situations -CA allows "duly authorized" members of any news service, newspaper or radio or TV station or network to enter areas ... by law enforcement due to a flood, storm, fire, earthquake, explosion, accident, or other disaster -OR provides journalists with "reasonable access" to search and rescue areas 5. Taping and Recording Many other laws may directly affect news gathering and the ... ... does not offer a shield to reporters who violate these either! -In most states and in D.C. a reporter can ... r... a conversation or interview with a news source! These are known as ...-... c... rules, since only ... party to the conversation (the journalist ... it) needs to know it is being ... [Alabama is included here] (almost 40 states + D.C. fall into this ...-friendly, ...-party c... category) -11 states require reporters to obtain permission from ... parties in a conversation before ... (...-... c... rules). Laws prohibit anyone from ... r... a conversation ...-to-..., on the ..., or almost anywhere! Example: California Penal Code states a crime is committed if anyone (including a ...): "In... and without ... of ... p... to a confidential communication by means of any electronic amplifying or ... device, e... upon or r... the confidential communication!" In CA, a "confidential communication" is one which a party to the conversation has an objectively r... e... it is not being overheard or r... Violation occurs the moment the ... is made, regardless of whether it is later .../a...! What if a person calling from a ...-p... c... state records a conversation with a recipient who lives in an ...-p... c... state? Kearney v. Salomon Smith Barney - Supreme Court of California (2006) found CA's ...-p... c... statute applied and controlled when a party in GA (a ...-p... c... state) ... r... a conversation with a CA resident -MD also holds its ...-p... c... law controls when out-of-state callers ... conversations Journalists calling into ...-p... c... states are WISE to get permission before taping! Nearly half states and federal government have laws prohibiting e... Growing number of states also have statutes that prohibit secretly taking a ... ... or s... ... of a person in a location where they have a r... e... of ...! -Laws target "video voyeurs" but impact journalists and legitimate photographers. Anyone who hopes to practice journalism without violating the law needs to know the laws in their ... that relates to n... ...! There are subtle differences among state laws, and statutes change from time to time! E... statutes often involve consideration of what constitutes a r... e... of ... in a conversation -Example: Michigan Supreme Court considered whether state's e... statute was violated by backstage recording of a conversation at a concert -Discussions by police officers (plaintiffs) with concert organizers regarding whether/not a sexually explicit video could be shown. A tape of the conversation was featured in "exclusive backstage footage" on a tour concert DVD, police officials sued -MI's e... statute prohibits "any person who is/not present during a private conversation from willfully using any device to e... upon the conversation without the c... of all the parties" Key phrase is "private conversation" - has to be a private conversation for the statute to be violated! -MI Supreme Court concluded there was no r... e... of ... because 1) More than 400 people had backstage passes including members of media 2) At least 9 identified people in the room where the conversation was taped, plus unidentified others free to come/go and listen as they pleased 3) Plaintiffs recorded were aware there were multiple camera crews in the vicinity -E... statute NOT violated 6. Covering and Recording Protests and Police Following murder of George Floyd in 2020, protests nationwide. Journalists covering the unrest often were targets of law enforcement, showing the treacherousness of reporting! -U.S. Press Freedom Tracker (press freedom violations nationwide) - in the year after Floyd's murder, press freedom violations reported in 36 states and more than 80 cities (415 assaulted, 153 arrested, 105 had equipment damaged, 21 equipment seized or searched) More than 85% of the assaults on journalists were by law enforcement Example: CNN correspondent Jimenez and crew arrested live on TV while covering protests in Minneapolis. Jimenez was handcuffed during live shot while standing on public street, even after identifying himself as reporter and offering to move nearby. Instead arrested him. Jimenez held in custody for an hour before being released. Minnesota's governor apologized Example: Freelance journalist Tirado blinded in one eye after police shot her with a foam bullet while photographing protests in Minneapolis. Tirado said she displayed her press credentials prominently. Wore a respirator and goggles. Law enforcement first fired tear gas in the direction of protestors. Then while setting up to take a photo, she felt impact on her face. Tirado later sued city of Minneapolis, Minneapolis police chief and president of Minneapolis police union. She alleged they violated the First Amendment by shooting her in retaliation for exercising her free speech rights as well as Fourth Amendment by using excessive force. Federal judge rejected motion to dismiss the case, allowing Tirado's lawsuit to proceed Example: Reporters Committee for Freedom of the Press sent letter to NYC officials describing several troubling incidents involving journalists covering protests. Police repeatedly hit a Wall Street Journal reporter in the face with riot shields and pushed him to the ground, though he was wearing a police-issued press badge. "The right of the press to document police activity is foundational to our democracy and has long been recognized and protected by the courts. The challenges that officers face in policing during times of civil protest do not s... any of the rights guaranteed by the ... ..., and moments of crisis demand we protect the American ideal of a free press even more passionately." (June 2020) But the incidents around the country continued Example: Federal court in OR granted ... ... ... and then a p... ... that blocked law enforcement officials in Portland from dispersing, arresting, threatening to arrest, or using force against journalists at protests - unless law enforcement had p... ... (as required by ... ...) to believe the journalists themselves committed a ...! -The orders barred law enforcement from seizing journalists' cameras or press passes or ordering journalists to stop filming or observing a protest. The lawsuit, filed by the American Civil Liberties Union on behalf of several journalists who had been assaulted while covering protests in Portland, alleged law enforcement "intentionally targeted and used physical force and other forms of intimidation against journalists and authorized legal observers for the purpose of preventing and deterring them from observing and reporting on unreasonably aggressive treatment of lawful protestors" In October 2020, 9th Circuit denied government's motion to stay, or suspend, the injunction as they appealed it. In Index Newspapers v. United States Marshal Services, 9th Circuit wrote "strong evidentiary support for district court's finding that some [law enforcement officers] were motivated to target journalists in retaliation for plaintiffs' exercise of their 1A rights" In many of the instances where journalists were arrested while covering protests from 2020-1, they were engaged in l... n... and appeared to have clearly ... themselves as ... of the n... ...; such arrests often result in charge later being ... - but an IA journalist was forced to stand trial Reporter for Des Moines Register, arrested in while covering a demonstration. Though she said she identified herself as a reporter, she was arrested after police ordered protestors to disperse and then used tear gas against them. She was charged with failure to disperse and interference with official acts; each charge carried up to 30 days in jail. However, a jury found her not guilty. The assaults on journalists as they covered protests continued into 2021 A lawyer representing more than 20 news organizations sent a letter to the Minnesota governor and to leaders of the state's law enforcement organizations, outlining alleged assaults of journalists by police officers in Brooklyn Center. One freelance photographer who was covering protests for NYT said police surrounded his car as he tried to leave the protests. Said officers beat on the car windows with batons and then forced him out of the car, hitting him in legs and striking his camera lens. Said officers didn't believe his press credentials were real until another journalist confirmed them. Walz, Minnesota governor, said "We all need to recognize the assault on media across the world and even in our country over the last few years is chilling. We cannot function as a democracy if they're not there." It is clear that covering protests and demonstrations can be f... with d...! Organizations like the National Press Photographers Association, Poynter Institute, Reporters Committee for Freedom of the Press, and Student Press Law Center offer suggestions for journalists to safely cover protests. Suggestions do not guarantee journalists will remain trouble-free, but some key advice: 1. C... ... yourself as a ... 2. T... ... with ... journalist as you report 3. Bring key s... e... 4. Make sure p..., including a l..., know ... you are going and ... you are c... before you leave 5. If police issue a d... o... or give other di..., c... and display your p... c... Be careful not to in.. with police Importantly, most courts now have ruled ... or ... police officers performing their ... in ... is protected by the ... ... and doesn't amount to in... with them! -Fields v. City of Philadelphia, 3rd Circuit found growing consensus among courts the ... ... protects the right to ... the police in ... places like streets, parks, sidewalks. This right safeguards both smartphone-carrying ... c... and p... ... -... ... is a q... right, it is subject to r... r..., such as moving people who are recording back a few feet for safety concerns -1st Circuit added to consensus when it ruled police officers discharging their d... in ... can be ... r... (making it lawful to r... without them ... it!) Summing things up... Common law offers ... assistance to people attempting to inspect government records U.S. Constitution drafted when ...-... was not central role of the press! Little evidence that the right to ... ... was intended to be guaranteed by the ... ... (Federal courts have suggested ... ... is entitled to some protection under the Constitution, but have been ... in granting that protection) U.S. Supreme Court limited the rights of reporters to ... ... at prisons and jails to the ... rights enjoyed by o... c... Courts have not permitted the use of the ... ... to im... reporters from l... c... that result when a law is broken during news gathering (Many plaintiffs find it easier to sue the press for how the news has been ... than for libel and IOP)

2. Harassment: 1996, a federal judge in Penn., took the extraordinary action of enjoining the news-gathering activities of two reporters who worked for the TV infotainment program "Inside Edition." Reporters Lewis and Wilson were preparing a story on high salaries paid to corporate executives at U.S. HealthCare while company was imposing severe cost cutting on patients. Story focused on Abramson, board chair, and Abramson's daughter and son-in-law (Wolfson's) who also worked at U.S. HC. The Wolfson's argued reporters used ambush interviews, shotgun microphones and other electronic equipment to harass them and invade their privacy after they rejected requests for on-camera interviews. Reporters went so far as to follow their daughter to school and entire family when they took vacation in Florida. Wolfson's sued reporters for tortious stalking, harassment, trespass and invasion of privacy (inclusion upon seclusion), asked judge to stop the reporters from using the intrusive news-gathering techniques until jury trial was held. Judge thought the Wolfson's would prevail in their lawsuit against the reporters. He said through their unreasonable surveilling, hounding and following, the two reporters had rendered the family captive in their own home. The judge entered a preliminary injunction that barred the reporters from any conduct, with or without the use of cameras, that invades their privacy, actions including but not limited to harassing, hounding, following, intruding, frightening, terrorizing, or ambushing the family. 1997, parties reached settlement and judge dissolved preliminary injunction issued against "Inside Edition." 3. Fraud: Fraud is a knowingly false statement of a material or significant fact that is communicated with the intent to induce the plaintiff to rely on that statement and that does, in fact, induce the plaintiff to reasonably rely upon it to the plaintiff's harm or injury Typically we think of sellers of goods engaging in fraud when they lie to buyers about the quality of goods. But can journalists be held liable for fraud when they try to obtain information by telling a lie? Scenario: Newspaper editor hears well-founded rumors that a local retail business is cheating its customers. To check out this story, two reporters apply for jobs at business to look what goes on inside. Pair use false names, fake work histories, and tell business owners they are looking for work. Do not reveal they are reporters and will be spying on the other workers at the business. Are the reporters' activities legal? 1996, jury in North Carolina decided ABC journalists had committed FRAUD when they lied about their backgrounds and intentions to get jobs at a supermarket chain the network was investigating for potential health code violations. Damage award of $5 million later reduced to $2 when U.S. Court of Appeals ruled the behavior did not meet strict legal standard for fraud required by NC statutes. BUT high-profile case, generated more news coverage than the original broadcast about the supermarket chain, brought into sharp focus the issue of reporters pretending to be people they aren't to secretly gather news. In a different state with a different statute the fraud conviction might have been sustained. In Minnesota just a year later, WCCO TV and one of its reporters were found guilty of both fraud and trespass in situation that mirrored the ABC case. Reporter lied about her background and reportorial intentions when applied for position as volunteer at a care facility for people with intellectual disabilities. Secretly videotaped activities at the facility and portions of the tape later telecast. An issue closely related to fraud is IMPRESONATION by journalists of government officials to obtain information. Such impersonation is prohibited by both federal and state laws and 1A provides no defense. Journalist Lidgi sentenced in 2002 to one year probation and 60 hours of community service by federal court for posing as both federal prosecutor and a federal judge's aide to obtain secret legal documents in an espionage case in Cleveland, OH. Agreed to plead guilty to one count of impersonating a federal official after a grand jury had indicted him on three counts and he faced up to nine years in prison. 4. Failure to Obey Lawful Orders: Police and fire officials at scene of disasters, accidents and fires frequently restrict access of the press and public to the site. Reporters MUST respect these rules or face charges of disorderly conduct or worse. Sometimes it is not always clear whether police orders directed at reporters are indeed lawful. 2018, freelance journalist on assignment for news Web site Truthdig was arrested while covering demonstration in Jefferson City, MO. Journalist, Nigro, livestreaming as a group of demonstrators walked onto a street, linked arms and sat down. Officers arrived to arrest demonstrators. As Nigro was photographing the arrests, officer ordered him to get onto the sidewalk. Nigro complied, but then approached a second officer to ask about the arrests. Through bullhorn, officer commanded Nigro to "get back on the sidewalk. That's your last warning." But the first officer instead ran toward Nigro and arrested him. Nigro was charged with "failure to obey" and faced maximum penalty of 90 days in jail or a $1,000 fine. Prosecutors though dropped the charges months later after Nigro rejected their offer of a smaller fine along with community service. The general rule is that the First Amendment does not give press special rights of access to disaster scenes or protect reporters from arrest and disorderly conduct charges when they fail to obey lawful commands of police at accident scenes. But at least three states (CA, OH, OR) have statutes that carve out some (though not complete) protection for journalists gathering news in certain situations. California allows "duly authorized" members of "any news service, newspaper or radio or TV station or network" to enter areas closed by law enforcement due to a "flood, storm, fire, earthquake, explosion, accident or other disaster," while Oregon provides journalists with "reasonable access" to search and rescue areas. 5. Taping and Recording: Many other laws may directly affect news gathering. And the First Amendment does not offer a shield to reporters who violate these, either. Example: In most states and D.C. a reporter can secretly record a conversation or interview with a news source. These are known as one-party consent rules, since only one party to the conversation (the journalist taping it) needs to know it is being recorded. While almost 40 states and D.C. fall into this journalist-friendly, one-party consent category, 11 states require reporters to obtain permission from ALL parties in a conversation before recording (all-party consent states). These laws prohibit anyone from secretly recording a conversation face-to-face, on the telephone or almost anywhere. Example: California Penal Code Section 632 a crime is committed by anyone (including a journalist) who: è Intentionally and without consent of all parties to a confidential communication by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether carried on among the parties in presence of one other or by means of telegraph, telephone, or other device, except a radio California courts have held a "confidential communication" is one which a party to the conversation has an objectively reasonable expectation it is not being overheard or recorded. Violation occurs at the moment the recording is made, regardless of whether it is later published or aired. What law applies if a person calling from a one-party consent state records a conversation with a recipient who lives in an all-party consent state? 2006, Supreme Court of California held in Kearney v. Salomon Smith Barney California's all-party consent statute applied and controlled when a caller from Georgia (a one-party consent state) secretly recorded a conversation with a California resident. MY also holds its all-party consent law controls when out-of-state callers record conversations. Journalists calling into all-party consent states are WISE to get permission before taping. Nearly half the states and federal government have laws prohibiting eavesdropping. Growing number of states also have statutes that prohibit secretly taking a video recording or still photograph of a person in a location where they have a reasonable expectation of privacy. These laws target video voyeurs, but they impact journalists and legitimate photographers. Anyone who hopes to practice journalism without violating the law needs to know the laws in their particular state that relate to news gathering. There are subtle differences among the state laws, and the statutes change from time to time. Awareness of the law is best protection a reporter can have. Good resource on taping: Reporters Committee for Freedom of the Press. Eavesdropping statutes often involve consideration of what constitutes a reasonable expectation of privacy in a conversation. Example: Michigan Supreme Court in Bowens v. Ary considered whether that state's eavesdropping statute was violated by backstage recording of a conversation at a concert. The conversation in question involved discussions by police officials (plaintiffs) with concert organizers regarding whether/not a sexually explicit video could be shown before a performance by Dre and Snoop. A tape of the conversation later was featured as "exclusive backstage footage" on a tour concert DVD, and police officials sued. Michigan's eavesdropping statute prohibits "any person who is present or who is not present during a private conversation from willfully using any device to eavesdrop upon the conversation without the consent of all parties thereto." The key phrase is a "private conversation" - there must be a private conversation for the statute to be violated! In Bowens, following were crucial facts in Michigan Supreme Court's conclusion there was no reasonable expectation of privacy in the recorded conversation: 1) more than 400 people had backstage passes, including many members of local and national media, 2) there were at least 9 identified people in the room where the conversation was taped, plus unidentified others who were free to come and go from the room, and listen to the conversation as they pleased, 3) plaintiffs who were recorded were aware there were multiple camera crews in the vicinity (including crew specifically hired by defendants to record backstage matters of interest). Because there was no reasonable expectation of privacy in the recorded conversations, court ruled Michigan's eavesdropping statute wasn't violated! 6. Covering and Recording Protests and Police: George Floyd's murder in Minneapolis (2020) sparked protests nationwide. People demonstrated against police brutality and called for racial justice. Sometimes marches escalated into looting or rioting. Journalists covering the unrest often were targets of law enforcement, showing the treacherousness of reporting. U.S. Press Freedom Tracker - web site documenting press freedom violations around the country - found in the year after Floyd's murder (May 26, 2020 to May 25, 2021) press freedom violations reported across 36 states and more than 80 cities. 415 journalists assaulted (with tear gas, batons, pepper balls, rubber-coated bullets), while 153 were arrested, 105 had equipment damaged, and 21 had equipment searched or seized. U.S. Press Freedom Tracker reported more than 85% of assault on journalists at protests were by law enforcement. Example: CNN correspondent Jimenez and his crew arrested live on TV in May 2020 while covering protests in Minneapolis. Jimenez was handcuffed during live shot while standing on public street, even after identifying himself as reporter and offering to move nearby. Instead arrested him. Jimenez and his crew were held in custody for about an hour before being released. Minnesota's governor apologized, calling the arrest "unacceptable." May 2020, freelance journalist Tirado was blinded in one eye after police shot her with a foam bullet while she was photographing protests in Minneapolis. Tirado said she displayed her press credentials prominently. Wore a respirator and goggles. Law enforcement first fired tear gas in the direction of protestors. Then while setting up to take a photo, she felt impact on her face. Tirado later sued city of Minneapolis, Minneapolis police chief and president of Minneapolis police union. She alleged they violated the First Amendment by shooting her in retaliation for exercising her free speech rights as well as Fourth Amendment by using excessive force. Suit also claimed Minneapolis police customarily retaliate against journalists and city officials knew about that but failed to stop it. In February 2021, federal judge rejected motion to dismiss the case, allowing Tirado's lawsuit to proceed. In evidence-collection phase, discovery. Press freedom groups denounced the police behavior and called for law enforcement officers to stop attacking and arresting journalists. In June 2020, Reporters Committee for Freedom of the Press sent letter to NYC officials describing several troubling incidents involving journalists covering protests there. In one instance, police repeatedly hit a Wall Street Journal reporter in the face with riot shields and pushed him to the ground, even though he was wearing a police-issued press badge. "The right of the press to document police activity is foundational to our democracy and has long been recognized and protected by the courts. The challenges that officers face in policing during times of civil protest do not supersede (take the place of) any of the rights guaranteed by the 1A, and moments of crisis demand we protect the bedrock American ideal of a free press even more passionately (zealously)." But the incidents around the country continued. In July and August 2020, federal court in OR granted temporary restraining orders and then a preliminary injunction that blocked law enforcement officials in Portland, including federal officers, from dispersing, arresting, threatening to arrest, or using force against journalists at protests - unless law enforcement had probable cause (as required by 4A) to believe the journalists themselves committed a crime. The orders also barred law enforcement from seizing journalists' cameras or press passes or ordering journalists to stop filming or observing a protest. The lawsuit, filed by the American Civil Liberties Union on behalf of several journalists who had been assaulted while covering protests in Portland, alleged law enforcement "intentionally targeted and used physical force and other forms of intimidation against journalists and authorized legal observers for the purpose of preventing and deterring them from observing and reporting on unreasonably aggressive treatment of lawful protestors" In October 2020, 9th Circuit denied government's motion to stay, or suspend, the injunction as they appealed it. In Index Newspapers v. United States Marshal Services, 9th Circuit wrote "strong evidentiary support for district court's finding that some [law enforcement officers] were motivated to target journalists in retaliation for plaintiffs' exercise of their 1A rights" In many of the instances in which journalists were arrested while covering the protests in 2020-1, they were engaged in lawful newsgathering and appeared to have clearly identified themselves as members of the news media. Such arrests often result in charges later being dropped, but an Iowa journalist was forced to stand trial. Sahouri, reporter for Des Moines Register, was arrested in May 2020 while covering a demonstration in Des Moines. Though Sahouri said she identified herself as a reporter, she was arrested after police ordered protestors to disperse and then used tear gas against them. She was charged with failure to disperse and interference with official acts; each charge carried up to 30 days in jail. In March 2021, however, a jury found her not guilty. The assaults on journalists as they covered protests continued into 2021. In April, protests erupted in Brooklyn Center, Minn., after police officer shot and killed Wright during traffic stop. A lawyer representing more than 20 news organizations sent a letter to the Minnesota governor and to leaders of the state's law enforcement organizations, outlining alleged assaults of journalists by police officers in Brooklyn Center. One freelance photographer who was covering protests for NYT said police surrounded his car as he tried to leave the protests. McFadden, said officers beat on the car windows with batons and then forced him out of the car, hitting him in legs and striking his camera lens. Said officers didn't believe his press credentials were real until another journalist confirmed them. Walz, Minnesota governor, said "We all need to recognize the assault on media across the world and even in our country over the last few years is chilling. We cannot function as a democracy if they're not there." It is clear that covering protests and demonstrations can be fraught with danger. Organizations such as the National Press Photographers Association, Poynter Institute, Reporters Committee for Freedom of the Press, and Student Press Law Center offer suggestions for journalists to safely cover protests. Suggestions do not guarantee journalists will remain trouble free, but some key advice from these organizations: 1. Clearly identify yourself as a journalist 2. Team up with another journalist as you report 3. Bring key safety equipment 4. Make sure people, including a lawyer, know where you are going and what you are covering before you leave 5. If police issue a dispersal order or give other directives, comply and display your press credentials. Be careful not to interfere with police Importantly, most courts now have ruled that recording or photographing police officers performing their duties in public is protected by First Amendment and does not amount to interfering with them. 2017 case Fields v. City of Philadelphia, 3rd Circuit found growing consensus among courts that the 1A protects the right to record the police in public places such as streets, parks, and sidewalks. This right safeguards both smartphone-carrying private citizens and professional journalists. 1A right to record is a qualified right, it is subject to reasonable restrictions, such as moving people who are recording back a few feet for safety concerns. 2020, 1st Circuit added to that consensus when it ruled police officers discharging their duties in public can be secretly recorded - it is lawful to record them even without them knowing it "A citizen's audio recording of on-duty police officers' treatment of civilians in public spaces while carrying out official duties, even when conducted without an officer's knowledge, can constitute newsgathering every bit as much as a credentialed reporter's after-the-fact effort to ascertain what has transpired" Project Viritas Action Fund v. Rollins. It was a 17-year-old bystander who recorded Floyd's murder on her cellphone. Frazier's video ignited protests and became key evidence in the conviction of police officer Chauvin. 2021, Pulitzer Prize board awarded Frazier a special citation for "courageously recording the murder of Floyd, a video that spurred protests against police brutality around the world, highlighting the crucial role of citizens in journalists' quest for truth and justice' Summary Gaining access to government-held information is a major problem for journalists and citizens alike. The law is not always helpful! Common law offers little assistance to people attempting inspect government records. U.S. Constitution drafted when news gathering was NOT central role of the press. There is little evidence the right to gather news was intended to be guaranteed by the 1A. Federal courts have suggested news and information gathering is entitled to some protection under the U.S. Constitution, but they have been stingy in granting such protection. U.S. Supreme Court has limited the rights of reporters to gather information at prisons and jails to the same rights enjoyed by other citizens. Lower courts have found broader, albeit qualified, constitutional rights of access. Courts have not permitted however the use of the 1A to immunize reporters from legal consequences that result when the law is broken while news is being gathered. Many plaintiffs find it is easier to sue the press for how the news has been gathered than for libel or IOP. Suits for trespass, fraud, misrepresentation, failure to obey lawful orders and other causes of action possible. Also, covering events such as protests and demonstrations can be fraught with danger for journalists!

Exemption 4: Trade Secrets Trade secrets and c... or f... information obtained from a person and p... or c... Exemption applies only if a three-part test is satisfied: 1. The information for which the exemption is sought must be a ... ... or c... or f... in character 2. It must be obtained from a ... 3. It must be p... or c... Two kinds of information are exempt from disclosure under this exemption: ... ... and ... or ... information! The term "person" sweeps up not just individuals but p..., c..., a... Example: Recent legal challenge on whether Exemption 4 applied to Supplemental Nutrition Assistance Program (SNAP; formerly food stamp program) USDA issues SNAP participants a card to use to buy food from grocery stores. When a participant uses the card, the USDA receives a record of the transaction, which is called a SNAP redemption A South Dakota newspaper asked USDA for annual SNAP redemption totals for stores that participate in the program. But USDA refused to release the data, replying in part on Exemption 4 Newspaper challenged the denial but Supreme Court sided with USDA -8th Circuit cited a l... ... from a 1970s case - in which the U.S. Court of Appeals for D.C. held Exemption 4 applied only if the company that submitted the information would suffer s... c... harm from its release - decided the release of SNAP redemption totals was not likely to cause s... c... h... for stores -BUT the Supreme Court ... the decision and clarified what amounts to "c..." under the exemption - under Exemption 4 c... information received from outside sources can be withheld if it is "c... treated as ... by its owner and provided to the government under an a... of ..." -Court ruled SNAP data fell under this definition! Stores c... do not disclose this data or make it publicly available. The government has long promised stores it will keep their information ... Commentators worried the Court's interpretation of Exemption 4 in Food Marketing Leadership v. Argus Leader Media (2019) ... the reach of the exemption, making it easier for ... records to be kept from disclosure Example: U.S. Small Business Administration invoked Exemption 4 after media organizations and Center for Public Integrity filed FOIA requests seeking records of all loans made under the Paycheck Protection Program and the COVID-related Economic Injury Disaster Loan program. PPP was a government-backed loan program meant to help businesses make payroll during the early months of the pandemic Citing Exemption 4, the SBA released some records but withheld precise loan amounts for PPP loans greater than $150k, claiming the actual amounts would reveal c... c... information about borrowers' payroll But a federal judge rejected the SBA's argument. The judge ruled "disclosure would not reveal any information that has 'c... and a... been treated as ...'" unlike the SNAP data. The judge noted the PPP loan application informed potential borrowers their names and loan amounts would be released upon a ... ... "SBA does not explain how the loan data could remain 'c...' for when the Government not only provided no a... of ..., but also told borrowers explicitly information would be disclosed"

4. Trade Secrets Exemption #4: Trade secrets and commercial or financial information obtained from a person and privileged or confidential. This exemption applies ONLY if a three-part test is satisfied: (1) The information for which the exemption is sought must be a trade secret or commercial or financial in character; (2) it must be obtained from a person, and (3) it must be privileged or confidential. Two kinds of information are exempt from disclosure under this exemption: TRADE SECRETS and FINANCIAL OR COMMERCIAL INFORMATION. The term "person" is broadly defined to sweep up not just individuals, but also partnerships, corporations and associations. A recent legal challenge involved whether Exemption 4 applied to Supplemental Nutrition Assistance Program (SNAP) redemption information. SNAP was formerly known as the food stamp program. The U.S. Department of Agriculture (USDA) issues SNAP participants a card, similar to a debit card, to use to buy food from participating grocery stores. When a participant uses the card to buy food, the USDA receives a record of the transaction, which is called a SNAP redemption. Argus Leader, a SD newspaper, asked USDA for annual SNAP redemption totals for stores that participate in the program. But the USDA refused to release the data, replying in part, on Exemption 4. Argus Leader challenged the denial, but in 2019 the U.S. Supreme Court sided with USDA. Longstanding precedent from a 1970s case decided by the U.S. Court of Appeals for D.C. held Exemption 4 applied only if the company that submitted the information would suffer substantial competitive harm from its release. Relying on that reasoning, 8th Circuit had ruled in 2018 the release of annual SNAP redemption totals was not likely to cause substantial competitive harm for stores. In Food Marketing Institute v. Argus Leader Media, however, Supreme Court reversed 8th Circuit decision and clarified what amounts to "confidential" under the exemption. The Court held under Exemption 4 commercial information received from outside sources can be withheld if it is "customarily treated as private by its owner and provided to the government under an assurance of privacy" Court said the SNAP data at issue fell under that definition. Stores customarily do not disclose SNAP data or make it publicly available in any way the Court said, and the government has long promised stores that it will keep their information private. Commentators worried the Court's interpretation of Exemption 4 in Food Marketing Institute broadened the reach of the exemption, making it easier for private records to be kept from disclosure. The U.S. Small Business Administration invoked Exemption 4 after a coalition of media organizations and nonprofit Center for Public Integrity filed FOIA requests seeking records of all loans made under the Paycheck Protection Program (PPP) and the COVID-related Economic Injury Disaster Loan program. The PPP was a government-backed loan program meant to help businesses make payroll during the early months of the pandemic. Citing Exemption 4, the SBA released some records but withheld precise loan amounts for PPP loans greater than $150k, claiming the actual amounts would reveal confidential commercial information about borrowers' payroll. But a federal judge rejected the SBA's argument in 2020 case WP Company LLC v. U.S. Small Business Administration. The judge ruled "disclosure would not reveal any information that has 'customarily and actually been treated as private'" unlike the SNAP data in Food Marketing Institute. The judge noted the PPP loan application informed potential borrowers their names and loan amounts would be released upon a FOIA request. "SBA does not explain how the loan data could remain 'confidential' for purposes of Exemption 4 when the Government not only provided no assurance of privacy, but also told borrowers explicitly that the information would be disclosed"

Defining Obscenity -Outlawing obscenity is one thing; defining it is another. When American courts in wake of Comstock Act of 1873 first began considering what is/not obscenity, they borrowed a British definition called the ... rule - a work is obscene if it has a tendency to ... and d... those whose minds are open to such immoral influences and into whose hands it might fall -If something might influence the mind of a ... (or an overly ... individual; ANY person), was regarded as obscene for ..., under this definition -In addition, if any ... of a work, regardless how ..., met this definition, the ... work was regarded as obscene -Very b... and l... definition made it possible for federal and state authorities to wage an aggressive, successful war against erotic materials in first half of 20th century 1957 Supreme Court abandoned the ... rule, because of this rule American adults were permitted to read or watch only what was fit for ...! Supreme Court forced to fashion a new definition of obscenity, beginning with the case ... v. ... in 1957. Over next nine years, the ...-... test was developed Test has three parts: 1. The ... theme of the material taken as a ... must appear to a p... interest in sex 2. A court must find the material is ... ... because it affronts ... ... s... relating to the description or representation of sexual matters 3. Before something can be found to be obscene, it must be utterly without redeeming ... ...! Far narrower than the ... rule, it was the third part of the test the bedeviled government prosecutors. If a work had even the slightest ... ..., it could not be deemed as obscene The Supreme Court abandoned the ...-... test and created a new test for obscenity in 1973, in a case called ... v. .... Three-part test for obscenity adopted, known as the ... test, provides the ... standard for obscenity that ... courts in the U.S. must apply The Miller Test Miller v. California (1973) (5-4) Marvin Miller convicted of violating the California Penal Code for sending five unsolicited brochures to a restaurant in Newport Beach. The brochures advertised four erotic books and one film, contained pictures and drawings of men and women engaging in variety of sexual activities. The recipient of the mailing complained to police, Miller prosecuted by state authorities In Miller, for the first time since 1957, a majority of Supreme Court reached agreement on definition of obscenity. Chief Justice Burger and four others agreed material is obscene if following standards are met: 1. An ... person, applying ... ... ... s..., finds the work, taken as a ..., appeals to a ... interest in sex 2. The work depicts in a ... ... way sexual conduct specifically defined by applicable ... ... 3. The work in question lacks serious ..., ..., ... or ... ... As a result of the Miller ruling and subsequent obscenity decisions handed down by the Court since 1973, some guidelines have emerged Element #1 An Average Person "If an ... person, applying ... ... s..., would find the work, taken as a ..., appeals to a ... interest in sex" It is the ... of ... who makes this determination (can be the ... ..., but usually is the ...!). Supreme Court expects the ... of ... to rely on knowledge of the standards of the ... of the ... to decide whether the work appeals to a prurient interest The juror is not supposed to use their ... standards in this decision: "Material is neither judged on the basis of each juror's ... opinion nor by its effect on a p... s... or ... person or group" Court expects the standards of an ... person be applied in making this determination. Only ... - not ... or ... - are considered under "... person" aspect of this test! Prurient interest has been defined by courts to mean a ... or m... interest in n..., ..., or e... -In determining if material appeals to a prurient interest, the work must be taken as a ...! (Not a single scene in isolation or standing alone) -The definition of prurient interest focuses ONLY on ..., ..., or e...; has nothing to do with ...! Community Standards The definition of community standards is key to first part of Miller test. Chief Justice Burger made clear ... standards are to be applied (in most jurisdictions, the term ... standards has been translated to mean ... standards!) -All communities within the ... share the same standards -The question of applicable community standards becomes an important factor in cases involving the shipment of erotic material over l... ... within the U.S. and in cases involving the importation of sexually explicit material from ... the U.S. In prosecutions initiated by the U.S. Postal Service, government is free to choose the ... in which to try the case! -May be the city from which the material was ...; the city which it was ...; any city through which the material passed during transit! Example: A trial involving a magazine sent from Boston to Dallas might be held in ..., ... or anywhere in between. So ... standards might apply at the trial, or ... standards, or even ... or ... standards if the publication passed through or over those states during its shipment -This government practice is called "... s..." or selecting a site where a conviction is most ... o...! Venue shopping favors the ...; law enforcement officials could purchase and order adult content in ... communities in order to drag defendants located in more ... venues into these ... communities to stand trial Example: LA-based adult filmmaker Little was dragged across the country and prosecuted for obscenity in Tampa, FL Why Tampa? That's where law enforcement officials ... his content from a Web site. Second, because the ... ... that were applied were local ones in Florida, including a large swath of ... areas stretching well outside Tampa (Florida doesn't use statewide community standards in obscenity cases, but more local ones, in this case the U.S. Middle District of Florida) Why not Los Angeles? Because it is the capital of the adult industry in the U.S. -Little was convicted on multiple counts of transporting obscene matter by use of an interactive computer service and of mailing obscene matter into Florida. He was sentenced to more than three years in prison The notion that ... standards should apply to ...-transmitted adult content received some legal pushback -9th Circuit held in U.S. v. Kilbride a ... community standard be applied in regulating obscene speech on the ..., including obscene material disseminated by ... -This only applied within 9th Circuit, so far other courts are ... to adopt it (11th Circuit rejected ... community standard for ...-transmitted materials; U.S. Court of Appeals for D.C. also rejected) How does one prove what ... ... s... are when it comes to sexually explicit content? It is not easy! -First, it is ... (or ... if there is no ...) who decides what the ... s... are. ... must speculate about what other adults in their community would accept or tolerate. Most people do not talk with their neighbors about what, if any, adult content they watch or what adult Web sites they visit. Imagine the difficulty in guessing what the standard is in a city with hundreds of thousands of people or a state with millions! -Second, government is not required to present any ... about ... s...; an obscenity defendant though may put on ... of what the ... s... allegedly are. One way to demonstrate this is a "... argument" A defense attorney will demonstrate sexually explicit material that is exactly ... to that being targeted for prosecution is freely sold at stores in the community, and by extension, the community tolerates the material being prosecuted Example: if Barely Legal magazine is prosecuted in a community but ... magazines that also focus on young women are freely sold, this would be relevant for determining the community's tolerance of the content in Barely Legal -Today, defense attorneys use in-..., ...-... demonstrations to prove either many people in community regularly search online for sexually explicit content exactly like that being prosecuted or to show there are places online (and thus within their virtual community) where they can purchase material similar to what is being prosecuted (... searches using likes of Google Trends, accurate measures of type of content people are willing to view in privacy of home) Element #2 Patent Offensiveness "A work is obscene if it depicts in a ... ... way sexual conduct specifically defined by applicable ... ..." Will also be judged by the ... of ..., using ... ... s...! But the Supreme Court places limits on this judgment, ruling only what it calls ... sexual material meets the ... ... standard! -Georgia courts ruled that "Carnal Knowledge," an R-rated film starring Nicholson, was ... ... The Supreme Court reversed this ruling, saying the Georgia courts misunderstood the second part of the Miller test. Material that was ... ..., included "representations or descriptions of u... ... acts, normal or perverted, actual or simulated" and "representations or descriptions of ..., ... functions, and l... e... of ..." This catalog was not e..., but that only material like this qualifies as ... ... material. The second part of the Miller test was "intended to fix substantive ... limitations on the type of material subject to a determination of obscenity" The ... or the state ... ... must specifically define the kind of offensive material that may be declared to be obscene Element #3 Serious Value "A work must lack serious ..., ..., ... or ... ...!" Not as broad as "utterly without redeeming social value" element in Roth-Memoirs test, third criterion acts as a ... on ... and ... eager to convict on basis of the first two parts of the test! -The ... is supposed to play a pronounced role in deciding whether a work has serious value -The serious value element is not judged by ... or s... of the ... person (not whether an ... person in the community would find serious value), but whether a ... person ... find such value in the material -Both the state and defense will frequently introduce ... t... to try and "educate" the jury on the relative merit of the material in question Example: when Cincinnati Contemporary Arts Center was prosecuted for obscenity in 1990 for display of photographs by Robert Mapplethorpe (homoerotic and sadomasochistic images), defense attorney Sirkin used ... from the art world (museum directors and curators) to testify before the jury about the serious ... ... of the photos. The t... was pivotal in gaining an acquittal for the museum -Today, if adult videos are prosecuted as obscene, defense attorneys often call sex therapists and ... from places like the Kinsey Institute to describe how the content is used by normal couples to stimulate their own sex lives, learn about different sexual practices and open up discussion about their sexual habits. Defense attorneys argue adult videos can have ... ...; Such was the case in 2000 when jury of women near St. Louis found two adult videos featuring anal, oral and vaginal sex among women and between men and women were not obscene after hearing testimony from sex therapist Dr. Mark Schwartz of the Masters and Johnson Institute

Defining Obscenity Outlawing obscenity is one thing; defining it is something else. When American courts, in wake of adoption of the Comstock Act in 1873, first began considering what is/not obscenity, they borrowed a British definition called the Hicklin rule. Under this rule a work is obscene if it has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it might fall. If something might influence the mind of a child, it was regarded as obscene for everyone, under this definition. In addition, if any part of the work, regardless of how small, met this definition, the entire work was regarded as obscene. This very broad and loose definition made it possible for both federal and state authorities to wage an aggressive and highly successful war against erotic materials in the first half of the 20th century. In 1957, the Supreme Court abandoned the Hicklin rule, declaring because of this rule American adults were permitted to read or watch only what was fit for children. "Surely this is to burn the house, to roast the pig" Justice Frankfurter. In abandoning the Hicklin rule, the Supreme Court forced to fashion a new definition of obscenity, beginning with the case Roth v. U.S. in 1957. Over next nine years, in a variety of obscenity rulings, the Roth-Memoirs test was developed by the Court. Test had three parts: First, the dominant theme of the material taken as a whole must appeal to prurient (lewd, salacious) interest in sex. Second, a court must find the material is patently offensive because it affronts (insults) contemporary community standards relating to the description or representation of sexual matters. Third, before something can be found to be obscene, it must be utterly without redeeming social value. While the entire test was far narrower than the Hicklin rule, it was the third part of the test that continually bedeviled government prosecutors. If a work had even the slightest social value, it could not be deemed to be obscene. Summary Prosecutions for obscenity didn't occur in nation until early 19th century. In 1820s and 30s, many states adopted their first obscenity laws. The first federal law was passed in 1842. The government actively prosecuted obscenity in the wake of the Civil War, and in 1873 Congress adopted a strict new obscenity law. Obscenity was defined as being anything that had a tendency to deprave and corrupt those whose minds might be open to such immoral influences and into whose hands it might happen to fall. This rule, called the Hicklin rule, meant if any part of a book or other work had the tendency to deprave or corrupt any person (such as child or overly sensitive individual) who might happen to see the work, the material was obscene and no person could buy it or see it. This definition facilitated government censorship of a wide range of materials. In the 1950s and 60s, Supreme Court adopted a three-part definition or test for obscenity, the Roth-Memoirs test. Contemporary Obscenity Law The Supreme Court abandoned the Roth-Memoirs test and created a new test for obscenity in 1973 in a case called Miller v. California (5-4). Today, more than 45 years later, the three-part test for obscenity adopted in Miller, which is known simply as the Miller test, provides current standard for obscenity ALL COURTS in the U.S. MUST apply The Miller Test Marvin Miller was convicted of violating the California Penal Code for sending five unsolicited brochures to a restaurant in Newport Beach. The brochures, which advertised four erotic books and one film, contained pictures and drawings of men and women engaging in a variety of sexual activities. The recipient of the mailing complained to the police, and Miller was prosecuted by state authorities In Miller, for the first time since 1957, a majority of the Supreme Court reached agreement on a definition of obscenity. Chief Justice Warren Burger and four other members of the Supreme Court agreed that material is obscene if the following standards are met: 1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to a prurient interest in sex 2. The work depicts in a patently (clearly) offensive way sexual conduct specifically defined by applicable state law 3. The work in question lacks serious literary, artistic, political or scientific value The implications and ambiguities in these three elements create the need for fuller explanation. As a result of the Miller ruling and subsequent obscenity decisions handed down by the Court since 1973, some guidelines have emerged Element #1: An Average Person The first element of the Miller tests asks if an average person, applying contemporary community standards, would find the work, taken as a whole, appeals to prurient interest in sex. It is the trier of fact who makes this determination. This can be the trial judge, but more commonly it is the jury. The Supreme Court expects the trier of fact to rely on knowledge of the standards of the residents of the community to decide whether the work appeals to a prurient interest. The juror is not supposed to use their OWN standards in this decision. The Supreme Court noted in 1974: "This Court has emphasized on more than one occasion that a principle concern in requiring that a judgment be made on the basis of contemporary community standards is to assure material is judged neither on the basis of each juror's personal opinion nor by its effect on a particular sensitive or insensitive person or group" Note the last phrase. The court expects the standards of an average person to be applied in making this critical determination. Supreme Court has made it clear ONLY ADULTS - not children or minors - are to be considered under the "average person" aspect of the first part of the Miller test Prurient interest has been defined by courts to mean a shameful or morbid interest in nudity, sex or excretion. Two things are key here. First, in determining if material appeals to a prurient interest, the work must be taken as a whole (a single scene cannot be considered in isolation or standing alone; all of the contents of the video must be viewed in the aggregate). Second, the definition of prurient interest focuses ONLY on nudity, sex, and excretion; it has nothing to do with violence. Thus obscenity law deals only with sexually oriented content, not violent stories or violent images Element #1: Community Standards The definition of community standards is key to the first part of the Miller test. Chief Justice Burger made clear in the Miller decision that LOCAL standards are to be applied. In most jurisdictions, the term "local standards" has been translated to mean "state standards." All communities within the same state share the same standards. The question of applicable community standards becomes an important factor in cases involving the shipment of erotic material over long distances within the U.S. and in cases involving the importation of sexually explicit material from outside the U.S. In prosecutions initiated by the U.S. Postal Service, the government is free to choose the venue in which to try the case. This might be the city from which the material was sent, it might be the city which it was received or it might be any city through which the material passed during its transit. Example: A trial involving a magazine sent from Boston to Dallas might be held in Boston, Dallas or anywhere in between. So Mass. standards might apply at the trial, or TX standards, or even Penn. or KY standards if the publication passed through or over those states during its shipment. This government practice is called "venue shopping" or selecting a site where a conviction is most easily obtained. Venue shopping thus favors the prosecution. Simply put, law enforcement officials could purchase and order adult content in conservative communities (typically today by logging on to a Web site while situated in a conservative community) in order to drag defendants located in more liberal venues into those conservative communities to stand trial. Example: Los Angeles-based adult filmmaker Paul Little (Max Hardcore) was dragged across the country and prosecuted for obscenity in 2008 in Tampa, FL. Why Tampa? That's where law enforcement officials purchased his content from a Web site. Second, because the community standards that were applied were local ones in Florida, including a large swath of conservative areas stretching well outside Tampa (Florida doesn't use statewide community standards in obscenity cases, but rather more local ones, in this case the U.S. Middle District of Florida that includes some very conservative counties). Why not Los Angeles? Because it is the capital of the adult industry in the U.S., with the nearby San Fernando Valley known as Porn Valley. The strategy worked. Little was convicted on multiple counts of transporting obscene matter by use of an interactive computer service and of mailing obscene matter into Florida. He was sentenced to more than three years in prison. The notion that local standards should apply to Internet-transmitted adult content received some legal pushback, however, in 2009 when the 9th Circuit held in United States v. Kilbride that a "national community standard must be applied in regulating obscene speech on the Internet, including obscenity material disseminated via email" This decision applies, however, only within the 9th Circuit, so far other courts seem reluctant to adopt it. For instance, 11th Circuit rejected the use of a national community standard for Internet-transmitted materials in United States v. Little. Similarly, a district court within the U.S. Court of Appeals for D.C. rejected the use of a national community standard for the Internet in United States v. Stagliano. How does one prove what contemporary community standards are when it comes to sexually explicit content? It is not easy! First, it is the jury (or the judge if there is no jury) to decide what the community standards. Jurors must speculate about what other adults in their community would accept and tolerate. Most people, of course, don't talk with their neighbors about what, if any, adult content they watch or what adult Web sites they visit. Imagine the difficulty in guessing what the standard is in a city with hundreds of thousands of people or a state with millions. Second, the government is not required to present any evidence about community standards. An obscenity defendant, however, may put on evidence of what the community standards allegedly are. One way to demonstrate this is a "comparables" argument. In particular, a defense attorney will demonstrate sexually explicit material that is exactly comparable to that being targeted for prosecution is freely sold at stores in the community, and, by extension, the community tolerates the material being prosecuted. Example: if Barely Legal magazine is prosecuted in a community but comparable magazines that also focus on young women are freely sold, this would be relevant for determining the community's tolerance of the content in Barely Legal. Today, defense attorneys use in-court, search-engine demonstrations to prove either many people in the community regularly search online for sexually explicit content exactly like that being prosecuted or to show there are places online (and thus within their virtual community) where they can purchase material similar to that being prosecuted. Such Internet searches using the likes of Google Trends may provide accurate measures of the type of content people are willing to view in privacy and at home. Element #2: Patent Offensiveness The second element of the Miller test says a work is obscene if it depicts in a patently offensive way sexual conduct specifically defined by applicable state law. Patent offensiveness is also to be judged by the trier of fact, using contemporary community standards. But the Supreme Court has put limits on this judgment, ruling only what it calls hard-core sexual material meets the patently offensive standard. Georgia courts ruled that "Carnal Knowledge," an R-rated film starring Jack Nicholson and Candice Bergen, was patently offensive. The Supreme Court reversed this ruling, saying the Georgia courts misunderstood the second part of the Miller test. Material that was patently offensive, Justice Rehnquist wrote, included "representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated" and "representations or descriptions of masturbation, excretory functions, and lewd exhibition of genitals" Rehnquist acknowledged this catalog of descriptions was not exhaustive, but that only material like this qualifies as patently offensive material. The second part of the Miller test was "intended to fix substantive constitutional limitations on the type of material subject to a determination of obscenity" State laws are supposed to define the kinds of material or conduct that are prohibited as obscene. Many state obscenity statutes contain Rehnquist's descriptions as their definition of obscenity. Other state laws are less precise. Element #3: Serious Value To be obscene a work must lack serios literary, artistic, political or scientific value. While not as broad as the "utterly without redeeming social value" element in the Roth-Memoirs test, this third criterion in the Miller test nevertheless acts as a brake on judges and juries eager to convict on the basis of the first two parts of the test. The judge is supposed to play a pronounced role in deciding whether a work has serious value. The serious value element isn't judged by tastes or standards of the average person. The test is not whether an ordinary person in the community would find serious literary, artistic, political or scientific value, but whether a reasonable person could find such value in the material. Both the state and defense will frequently introduce expert testimony to try to "educate" the jury on the relative merit of the material in question Example: when Cincinnati Contemporary Arts Center was prosecuted for obscenity in 1990 for display of photographs by Robert Mapplethorpe (some photos featured homoerotic and sadomasochistic images), defense attorney Lou Sirkin used experts from the art world (museum directors and curators) to testify before the jury about the serious artistic value of the photos. The testimony was pivotal in gaining an acquittal for the museum. Today, if adult videos are prosecuted as obscene, defense attorneys often call sex therapists and experts from places like the Kinsey Institute to describe how the content is used by normal couples to stimulate their own sex lives, learn about different sexual practices and open up discussion about their sexual habits. Defense attorneys argue adult videos can have educational value. Such was the case in 2000 when jury of 12 women near St. Louis found two adult videos featuring anal, oral and vaginal sex among women and between men and women were not obscene after hearing testimony from sex therapist Dr. Mark Schwartz of the Masters and Johnson Institute The Miller Test 1. An average person, applying contemporary local standard community standards, finds that the work, taken as a whole, appeals to a prurient interest in sex 2. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law 3. The work in question lacks serious literary, artistic, political or scientific value

-Neither ... law nor the ... ... provides a clear and well-defined right of access to government information! -Access to government information is guaranteed by ... law! While government transparency is common across the world, the U.S. was a leader in the modern movement to pass access law; Starting in the early 1950s, there were concerted efforts by press and citizen lobbying groups in the U.S. to pass ... that guarantee the public and press have the right to inspect ... and other information held by the ... and to attend ... held by p... ... -These laws now exist in almost every state and there are federal open-records and open-meetings laws The Freedom of Information Act (FOIA) - 1966 -After many years of hearings, testimony, and work, Congress adopted FOIA which was ostensibly designed to open ... and ... long c... to p... in... -The purpose of this bill was to establish a general philosophy of the fullest possible d... of g...-... ... (based on documentary evidence left by Congress) -Journalists cite public records in about a fifth of their stories, some sources suggest this use of FOIA is increasing. Law is far from perfect, but FOIA contributes to journalists' ability to keep the ... in... and increase its understanding of ... a...! Example: WP published series of articles "The Afghanistan Papers: A Secret History of the War" - revealed pattern across three presidential administrations of government officials misleading the public about the war and masking strategic failures in it. Based on more than 2,000 pages of documents obtained from a three-year records battle (used FOIA to uncover hundreds of interviews the Office of the Special Inspector General for Afghanistan Reconstruction conducted with top military government officials from the war) Example: Series of damaging stories about apparent misuse of government resources lead to resignation of head of the EPA in 2018. Information obtained through FOIA (detailed accounting of the head's calendar - spent much of his time with major members of the industries he was in charge of and almost no time meeting with environmental and public health groups) Any ..., not just ..., can make a FOIA request, and ... routinely use information provided by nonprofit organizations, government watchdog groups and other organizations that were obtained by FOIA requests Some of the most effective requesters are w...-f... n... o... (National Security Archive, ACLU, EPIC, Electronic Frontier Foundation, Center for Constitutional Rights, Judicial Watch, Center for National Security Studies - frequently work to disseminate information on government activities) In the 2020 Fiscal Year (FY), federal agencies received 790k FOIA requests. Backlog of 141k (17.7% increase from 2019) FOIA contains a ...-day deadline for an agency to ... to a request, but FOIA requesters frequently face l... ...! For reporting purposes, agencies separate requests into three categories/"tracks" 1. ... - Average process time is about 30 days 2. ... - Requests that seek a high volume of material or require additional steps to process (like need to search for records in multiple locations). More than 80% processed within 100 days or fewer 3. ... - FOIA allows you to ... requests for both ... and ... requests. On average, took agencies about 14 days to adjudicate the requests for ... processing they received Some journalists have suggested the delays and failure to find records are d... ... by government bureaucrats; another explanation is FOIA is an ... mandate In addition, FOIA requests can be ...! A court may order federal agencies to pay r... ...' fees and other ... c... incurred in cases in which the plaintiff has substantially prevailed. Courts however are not required to award prevailing plaintiffs these ...' fees and ... c... When deciding whether to award fees and other costs, courts typically consider and weigh four factors: 1. The p... ... resulting from FOIA d... in the case 2. The c... ... to the prevailing plaintiff resulting from the d... 3. The n... of the plaintiff's interest in the d... records (scholarly? journalistic? public-oriented?) 4. Whether the ...'s r... for w... records had a reasonable basis in law or whether it simply denied to avoid e... or to f... the requester Example: Federal judge in San Francisco ordered DOJ and FBI to pay journalist Rosenfeld more than $470k, the amount he spent on ...' fees and ... costs in two successful and long-running lawsuits he filed against the FBI to obtain records relating to the 1960s protest movement at UC Berkeley. Considering the second factor above, the Judge noted Rosenfeld may have had f... in... in writing a book based on the records, but the mere intention to publish a book doesn't necessarily mean the n... of the plaintiff's interest is purely ...! Journalists were at the forefront of the effort to pass FOIA and intrinsically involved in crafting the legislation: 97% of journalists today believe open-records laws are important for them to fulfill their duties (study) The law has been highly criticized by journalists - FOIA is failing journalists for many reasons (notably the l... ... and p... in... associated with access requests). A key reason is because journalists simply do not ... the law nearly as much as c... and other non-media individuals/organizations (stark contrast to history and purpose of the law) Why don't journalists ... FOIA more? 1. The way the law is ...! FOIA directs federal agencies to "make records promptly available to the person" Doesn't provide journalists with analysis/answers to general queries and doesn't command government officials to research where information can be found. FOIA does not even required the government to affirmatively disclose information about records it has If a journalist does not know what records ... or what records to be ... for, FOIA is of little use! 2. ... might also impact FOIA requests by members of the news media As U.S. news media has been hit with decline in p..., some commentators worry ... constraints may limit both requests and challenges to denials. Litigating denials is both c... and ...-c.., creating additional barriers to access. Only large or w...-... news organizations have f... to support speculative in... and provide for a... ...! May be the biggest problem with media's use of FOIA In practice, FOIA is meaningless if the ... resources are not available to fight the ...-c... battles when requests are ... 3. ... concerns are keeping FOIA officials from releasing information to journalists that would be valuable in writing stories Because journalists are frequently interested in writing about ..., some journalists believe FOIA is not worth using because the government goes overboard to protect ... information A major concern is as government increasingly gathers ... information and better understands how much can be obtained from it, government officials are increasingly r... to share that ... information with journalists National Archives and Records Administration v. Favish (2004) Supreme Court decision that broadly interpreted the p... p... exemption in FOIA to include a right of familial or survivor ..., example of how the concept of ... has changed since FOIA was enacted For these reasons, it's no surprise c... requesters are using the FOIA more than ... even if law was primarily intended to benefit the news media! FOIA Reforms By 2000, vast majority of government records were created, transported and stored ...! As ... t... replaced p... records, agencies within federal government hesitated at allowing access to these ... records (hold they were a special class of data outside range of FOIA and off limits to public) Electronic FOIA (e-FOIA) (1996) -Congress adopted amendment to FOIA that requires government agencies apply the same standards of d... to ... records that they applied to ... documents! Including all e... correspondence, letters, and notes -Also establishes p... agencies must apply when faced with multiple requests for c... s... for records: Top p... goes to FOIA requests in which a delay could threaten the l... or s... of an individual Next in line comes the ... ... and others in business of d... in... to the ... -Law also requires an online index for agencies to publish of documents they have and make reasonable attempt to provide documents in the requested format -The law does not d... ... information, instead leaving this important question to federal agencies and the court What about emails of people working in the White House? 2010, after protracted legal battle started during W. Bush administration, Obama administration Issued letters to attorneys for both National Security Archive and Citizens for Ethics and Responsibility, outlining new procedures for capturing and preserving email records for people working in the Executive Office of the president using an EmailXtender system 2007, whistleblowers alleged unclassified WH email system had not archived emails systematically since 2002, at least 5M email messages missing from 03/2003-10/2005 OPEN Government Act (2007) -President Bush signed the first major ... to the FOIA since the 1990s; Openness Promotes Effectiveness in Our National Government Act of 2007 -Made several reforms designed to e... processing of FOIA requests, help requesters easily obtain better information on the ... of their requests and hold federal agencies more accountable if they fail to t... ... to requests! -Government agencies required to assign a t... n... for each request that will take longer than 10 days to process and establish a p... ... or an ... s... to help requesters check the status of their requests -Agencies that fail to comply within the ...-day window to respond to a request are no longer allowed to charge any s... and d... ... related to the request unless "unusual or exceptional circumstances" justify the delay -Law allows the recovery of ... f... and ... c... for FOIA requesters who substantially prevail in lawsuits -Created the Office of Government Information Services (OGIS) to serve as a FOIA om... to mediate d... - charged with reviewing c... by agencies with FOIA's rules and making r... to Congress and president on how to improve FOIA FOIA Improvement Act of 2016 -Obama administration signed bill that significantly reformed and improved access to public records -Most importantly, requires agencies operate from a presumption of ...! -Codified the "foreseeable harm" standard - even if a record falls within one of the ... e..., it will still be released unless it is r... f... that disclosure will h... an interest protected by an e... -Creation of single online portal to accept requests for all agencies (FOIA.gov, 2018) -Agencies now required to put online all documents that have been requested ... or more times! -Strengthened OGIS, permitting it to make r... for improving FOIA without seeking input of other ... -Limited Exemption 5 - the ability of agencies to withhold "d... p..." documents (memoranda, letters, drafts) now limited to 25 years (Abuse of Exemption 5 has led some journalists to call it the 'withhold it because you want to' exemption)

THE FREEDOM OF INFORMATION ACT (FOIA) Neither common law nor the U.S. Constitution provides a clear and well-defined right of access to government information! Though scholars have argued access to government info is a constitutional right and at least two international courts have declared access to government info is a human right, in the United States and much of the world, access to government info is guaranteed by STATUTORY LAW! While government transparency has taken hold across the globe, U.S. was a leader in the modern movement to pass access laws. Beginning in early 1950s, there were concerted efforts by press and citizen lobbying groups in the U.S. to pass statutes that guarantee the public and press the right to inspect records and other information held by the government and to attend meetings held by public agencies. These laws now exist in almost every state. In addition, there are federal open-records and open-meetings laws. Federal legislation: In 1966 after many years of hearings, testimony and work, Congress adopted the Freedom of Information Act (FOIA), which was ostensibly designed to open records and files long closed to public inspection. The documentary evidence left by Congress relating to the passage of this measure leaves little doubt the purpose of this bill was to establish a general philosophy of the fullest possible disclosure of government-held records. Now over 50 years old, FOIA provides a powerful tool for investigative journalists. Journalists cite public records in about a fifth of their news stories, and some sources suggests journalists' use of FOIA is increasing. While the law is far from perfect, FOIA greatly contributes to journalists' ability to keep the public informed and increase its understanding of government activities. Example: 2019, Washington Post published series of articles "The Afghanistan Papers: A Secret History of the War" Articles revealed a pattern, across three presidential administrations, of government officials misleading the public about the war in Afghanistan and masking strategic failures in the war effort. The articles were based on more than 2,000 pages of documents the Post obtained after a three-year public records battle. To produce the articles, Post investigative reporter Whitlock used FOIA to uncover hundreds of interviews the Office of the Special Inspector General for Afghanistan Reconstruction conducted with top military and government officials from the Afghanistan war. Whitlock would expand the series and publish as a book. Example: A series of damaging stories about apparent misuse of government resources led to Pruitt's resignation as head of the Environmental Protection Agency in 2018. The information that supported some of those stories was obtained through FOIA. A FOIA request gave reporters a detailed accounting of Pruitt's calendar, which showed "he spent much of his time with major members of the industries in he was charge of regulating and almost no time meeting with environmental and public health groups" Friedman, reporter for NYT, who wrote many stories about Pruitt: "In the case of Pruitt's EPA, were it not for FOIA, we would not have been able to do as much as we did or tell the stories we told." ANY CITIZEN, NOT JUST JOURNALISTS, can make an FOIA request, and journalists routinely use information provided by nonprofit organizations, government watchdog groups and other organizations that were obtained via FOIA requests. Some of the most effective requesters are well-financed nonprofits (National Security Archive, American Civil Liberties Union, Electronic Privacy Information Center, Electronic Frontier Foundation, Center for Constitutional Rights, Judicial Watch, Center for National Security Studies frequently work to disseminate information on government activities. How many FOIA requests do all federal agencies receive? Fiscal year 2020, total of 790,688. FOIA contains a 20-day deadline for an agency to respond to a request, FOIA requesters frequently face long delays. At the end of FY 2020, backlog of 141,762 requests (17.7% increase from 2019). For reporting purposes, agencies are directed to separate requests into three categories or "tracks:" simple, complex, and expedited. Requests that seek a high volume of material or require additional steps to process such as the need to search for records in multiple locations are complex. The average processing time for "simple track requests" was about 30 days. More than 80% of complex requests were processed in 100 days or fewer. FOIA also allows you to make expedited (sped up) requests for both simple and complex requests. FY 2020, government overall made decision to grant or deny 26,476 requests for expedited processing. On average, took agencies about 14 days to adjudicate the requests for expedited processing they received. Some journalists have suggested the delays and failures to find records are deliberate decisions by government bureaucrats. Another explanation is FOIA is an underfunded mandate. In addition, FOIA requests can be costly. Under FOIA, a court may order federal agencies to pay reasonable attorneys' fees and other litigation costs incurred in cases in which the plaintiff (person seeking records) has substantially prevailed. Courts, however, are not required to award prevailing plaintiffs attorneys' fees and litigation costs. When deciding to award fees and other costs, courts typically consider and weigh four factors: 1) The public benefit resulting from FOIA disclosures in the case 2) The commercial benefit to the prevailing plaintiff resulting from the disclosures 3) The nature of the plaintiff's interest in the disclosed records (scholarly? journalistic? public-oriented?) 4) Whether the government's rationale for withholding the records had a reasonable basis in law or whether it simply denied the request to avoid embarrassment or to frustrate the requester 2012, federal judge in San Francisco ordered DOJ and the FBI to pay investigative journalist and author Rosenfeld more than $470,000, the amount he spent on attorneys' fees and litigation costs in two successful and long-running lawsuits he filed against the FBI to obtain records relating to the 1960s protest movement at UC Berkeley. Those documents included records demonstrating the FBI's surveillance of students and faculty and records involving Reagan's relationship with the FBI when Reagan was California governor. Considering the second factor, Judge Chen noted though Rosenfeld may have had a financial incentive in writing a book based on the records, the "mere intention to publish a book doesn't necessarily mean the nature of the plaintiff's interest is purely commercial" Journalists were at the forefront of the effort to pass FOIA and were intrinsically (essentially) involved in crafting the legislation. In addition, journalists believe access laws are important tools, with one study showing 97% of journalists believe open-records laws are important for them to fulfill their duties. The law, however, has been highly criticized by journalists. While FOIA is failing journalists for many reasons - notably, the long delays and processing inefficiencies associated with access requests -- a key reason is because journalists simply do not use the law nearly as much as corporations and other nonmedia individuals and organizations, a fact that stands in stark contrast to the history and purpose of the law. Why don't journalists use FOIA more? 1. A major problem with journalists using FOIA is the way the law is written. FOIA directs federal agencies to "make records promptly available to any person" Doesn't provide journalists with analysis or answers to general queries and doesn't command government officials to research where info can be found. FOIA does not even require the government to affirmatively disclose info about what records it has. Thus, if a journalist does not know what records exist or what records to be looking for, FOIA is of little use! 2. Economics might also impact FOIA requests by members of the news media. As the U.S. news media has been hit with a decline in profits, some commentators worry economic constraints may limit both FOIA requests and challenges to FOIA denials. Litigating denials is both costly and time-consuming, creating additional barriers to access. Only large or well-financed news organizations have funds to support speculative investigation and provide for attorney fees. Might be the biggest problem with the media's use of FOIA. In practice, FOIA is meaningless if the financial resources are not available to fight the time-consuming battles when requests are denied. 3. Final worry is privacy concerns are keeping FOIA officials from releasing information to journalists that would be valuable in writing stories. Because journalists frequently are interested in writing about people, some journalists believe FOIA is not worth using because the government goes overboard to protect personal information. A major concern is that as government increasingly gathers personal information and better understands how much can be gleaned (obtained) from that information, government officials are increasingly reluctant to share personal information with journalists. National Archives and Records Administration v. Favish (2004) Supreme Court decision that broadly interpreted the personal privacy exemption in FOIA to include a right of familial or survivor privacy, is an example how the concept of privacy has changed since FOIA was enacted. For these reasons, in some ways it isn't surprising that commercial requesters are using FOIA more than journalists even if law was primarily intended to benefit the news media. Despite these problems, many great stories are made possible by FOIA requests and young journalists should not be afraid to make public records requests at the local and federal level. FOIA Reforms By 2000 vast majority of government records were created, transported and stored electronically. As computer tech replaced paper records, agencies within federal government balked (hesitated) at allowing access to these electronic records. Most bureaucrats seemed to hold opinion electronic records were special class of data, outside range of FOIA and off limits to public. In 1996, Congress adopted amendment to FOIA that requires government agencies apply same standards of disclosure to electronic records they always applied to paper documents. Includes all email correspondence, letters, notes. The Electronic FOIA (e-FOIA) also establishes priorities agencies must apply when faced with multiple requests for computer searches for records. Top priority goes to FOIA requests in which a delay would threaten the life or safety of an individual. Next in line comes news media and others in business of disseminating info to the public. Law also requires agencies to publish an online index of documents they have and make reasonable attempt to provide documents in the requested format. The law does not define electronic information, instead leaving this important question to federal agencies and the courts. What about email of people working in the White House? 2010, after protracted legal battle started during W. Bush administration, Obama administration issued letters to the attorneys for both the National Security Archive at George Washington University and organization Citizens for Ethics and Responsibility in Washington, outlining new procedures for capturing and preserving email records for people working in the Executive Office of the president using an EmailXtender system. In 2007, whistleblowers with knowledge of the White House computer system alleged the unclassified White House email system had not archived email systematically since 2002, and at least 5 million email messages were missing from period of March 2003 to October 2005. In late 2007, President Bush signed the first major amendments to FOIA since the 1990s. The Openness Promotes Effectiveness in Our National Government Act of 2007 (OPEN Government Act) made several reforms designed to expedite processing of FOIA requests, help requesters easily obtain better info about the status of their requests and hold federal agencies more accountable if they fail to timely respond to requests. Government agencies required to assign a tracking number for each FOIA request that will take more than 10 days to process and establish a phone number or an Internet site to help requesters check the status of their requests. Agencies that fail to comply with 20-day window to respond to a FOIA request are no longer allowed to charge any search and duplication fees related to the request unless "unusual or exceptional circumstances" that justify the delay. The law allows for the recovery of attorney fees and litigation costs for FOIA requesters who substantially prevail in FOIA lawsuits. The law created the Office of Government Information Services (OGIS) to serve as a FOIA ombudsperson to mediate FOIA disputes. OGIS charged with reviewing compliance by government agencies with FOIA's rules and making recommendations to Congress and president on how to improve FOIA. In 2016, Obama signed bill that significantly reformed and improved access to public records. Most importantly, FOIA Improvement Act of 2016 requires agencies operate from a presumption of openness. Law codified the "foreseeable harm" standard, even if a record falls within one of 9 FOIA exemptions, will still be released unless it is reasonably foreseeable that disclosure will harm an interest protected by an exemption. The law also paved way for creation of single online portal to accept FOIA requests for all agencies. FOIA.gov, launched in 2018. Agencies now required to put online all documents that have been requested three or more times. Also strengthened OGIS, permitting it to make recommendations for improving FOIA without seeking the input of other agencies. The new law limited FOIA exemption 5 - the ability of agencies to withhold "deliberative process" documents (memoranda, letters, drafts) - now limited to 25 years. Abuse has led some journalists to refer to Exemption 5 as "withhold it because you want to exemption"

Taping and Recording Protect against wiretapping! One-Party Consent States Most states Requires consent of one-party in the conversation (so no ...-... ... without ...!) Example: You are not involved in the conversation (NOT a party), cannot surreptitiously ... the conversation of others If you ARE a party in the conversation, you can ... without the other party's consent ... states and ... of ... Including ...! All-Party Consent States Requires all parties in conversation to consent to ... ... states (CA, CT, FL, IL, MD, MA, MT, NV, NH, PA, WA) Careful of ... ... in these states! Example: 617 area code (MA, an all-party consent state) If that resident is in MA at the time of the conversation, and they find out you were ..., can be sued even if you ... from a ...-... state! So be careful - ask for consent! Freedom of Information Act (FOIA) Most of the tools we have to access information comes from ... law! Public can receive access to ... ... [BUT not from the ..., ...] Write a letter -> email or sometimes fax to the appropriate federal agency The agency can deny your request [National security, personal privacy, ongoing law enforcement investigation exceptions] Possible fees: Search, process, duplication [only applies to news media] Redacted information: Blacked out or removed information from a record FOIA: ... records are open for public disclosure, ... [... exemptions] Is the information already out there? Nonprofit or government watchdog groups often send FOIA requests frequently - release it to the public FOIA History Freedom of Information Act (FOIA) -... passed in ... -Designed to open ... and ... long ... to ... ... -Government agencies (not ..., federal .../... branch, ... branch - think ...) -... ... may use (open to ...), NOT JUST ...! -No ... ... under the Constitution for ... -Since then has expanded to include ... ... (1996), to ... the ... process (2007), and to require agencies to operate from the ... to ... (2016). Who may you access records from? President? Judicial branch? Legislative branch? Congress? Speciality agencies (executive branch, agencies like FDA, etc.)? 1996 Electronic FOIA (eFOIA) -Requires agencies to apply the ... ... of disclosure for ... ... as they would ... documents May include emails, letters, notes, databases 2007 Openness Promotes Effectiveness in Our National Government Act (OPEN Government Act) -W. Bush administration -... the ... process! (Speeds it up) -Hold government agencies to respond in a ... manner: a. ... ... if a record will take more than 10 days to process b. Establish a phone number or an Internet site to help requesters check the status of their requests c. If agencies do not reply within ... days - cannot charge for ... and ... fees unless it is an unusual circumstance) d. ... of ... ... ... (OGIS) - acts as an ... to FOIA disputes [remedy before going to ... and ...] 2016 FOIA Improvement Act -Obama administration -Federal agencies have to operate from a ... to ... [... that documents are available; changes the ... of ... - it's no longer the requester needing to prove it is open, it is the ... it is open!] -Codified the '... ...' standard! Example: Even if records fall within an exemption, must demonstrate releasing the document will cause ... ... (more diligence) -Post online documents requested more than ... times (that way no one continues to make the same requests) Go check online first (FOIA.gov) -Paved way for creation of single online portal to accept FOIA requests (2018) -Strengthened OGIS, permitting it to make recommendations for improving FOIA without seeking the input of other agencies -Limited FOIA exemption 5 - withhold "deliberative process" documents limited to 25 years FOIA Request Process 1. ... the ... that possesses the records you want Example: Sometimes this can be difficult to do! Want information on an herbal pharmaceutical supplement. Do you contact the FDA? USDA? May be difficult to identify or easy to identify the right agency (depends) Agencies are segmented (one agency will not know the records of another) - may have to request multiple agencies or do more research until you find the right agency 2. Write a ... (some cases ... or ...) to the ... ... at the agency, requesting material You must identify both the agency and the administrator. This may be difficult to - ask the Public Information Office who it might be! 3. Agency must respond with ... days -Deadline is for ..., not ... ... [receiving ... ... could take years!] -Must make a "... ..." about how it will respond to request (..., or how ..., how ... it will cost) 4. ... If you think an exemption is b.s. or a lot of money to receive documents/records - can file an ... with the ... (who weighs both sides - is FROM A DIFFERENT AGENCY so no dog in the fight) 3 Tracks for purposes of filing: 1. ... - a ... (same blank) request, easily accessible 2. ... Requests that seek a high volume of material or require additional steps to process such as the need to search for records in multiple locations The more detail you place in your letter, the more likely you will be placed on the ... track (first blank) vs. a broader requester ('I want all documents on 'A.J. Bauer') 3. ... Especially if a ... request (first blank) - I've given the information I want, I know you have it, I want a quicker timeline! FOIA Fees -... initially ... Requesters [Example: a for-profit company - 'Can afford to spend more money'] -Charged for ... time, ... time and ... ..., Non-... research, ... ... [Example: a non-profit company, pay less!] -Charged only for ... (first ... pages free) All other requesters [Example: a citizen] -Charged for ... time (after ... free hours) and ... (first ... pages free) FOIA prioritizes to ... ... and ...-... organizations What is an agency? "Any ... department, ... department, g... ..., g...-... ... or other establishment in the ... branch of government (including the ... ... of the ..., ARE CARVEOUTS), or any ... r... agency" ***... BRANCH -Does not include records held by ... or f... ... [S... ...] -Does not include "the ...'s ... p... s... or units in the executive office whose sole function is to ... and ... the president" [Executive Privilege, president to an extent] What is agency record? -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? -If the agency has created the document but does not possess or control it? Example: A paper letter. No more copies after you sent it - FOIA request needs to go to the agency that received the letter. Rare today given email correspondence -If the agency possesses the document but has not created it? a. Possession related to official duties? b. Just happens to have document? Example of (b): Head of FBI had a birthday, received birthday card. Cannot just make a FOIA request for the card because the head happens to have it!

Taping and Recording One-Party consent -Requires consent of one-party in conversation (so no third-party recording without consent) -40 states and District of Columbia -Including Alabama All-Party consent states uRequires all parties in conversation to consent to recording -11 states (CA, CT, FL, IL, MD, MA, MT, NV, NH, PA, WA) -Careful of area codes in these states Recording, record, one-party consent state FOIA Statutory Government information, Congress, president All records, EXCEPT, nine Freedom of Information Act (FOIA) -Congress passed in 1966 -Designed to open records and files long closed to public inspection -Government agencies (not president, federal courts, legislative branch/Congress) -Since has expanded to include electronic records (1996), to expedite the filing process (2007), and to require agencies to operate from the presumption to openness (2016). Any citizen, open to all, journalists. Unique rights for journalists NO NO NO YES Same standards, digital records, paper documents 2007 OPEN Government Act Expedites the process! Timely a. Tracking number c. 20, search and duplication d. Office of Government Information Services, ombudsperson, courts and suing 2016 FOIA Improvement Act -Presumption to openness (presumption, burden of proof, presume) 'Foreseeable harm' Foreseeable harm 3 Request Process 1. Identify the agency that possesses the records you want 2. Write a letter (some cases email or fax) to the FOIA administrator at the agency, requesting material 3. Agency must respond with 20 days -Deadline is for response, not actual documents -Must make a substantive determination about how it will respond to request (exemption, or how long, how much) 4. Appeal Appeal, ombudsperson/ombudsman Tracks 1. Simple 2. Complex uRequests that seek a high volume of material or require additional steps to process such as the need to search for records in multiple locations 3. Expedited Fees -None initially 1. Commercial Requesters -Charged for search time, processing time and duplicating 2. Educational, Non-commercial research, news media -Charged only for duplicating (first 100 pages free) 3. All other requesters -Charged for search time (after two free hours) and duplicating (first 100 pages free) Regular citizens, non-profit organizations What is an agency? -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. -Does not include records held by Congress or federal courts [Supreme Court] -Does not include "the president's immediate personal staff or units in the executive office whose sole function is to advise and assist the president." EXECUTIVE BRANCH What is an agency record? -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. -If the agency has created the document but does not possess or control it, it is not an agency record. -If the agency possesses the document but has not created it, it might be an agency record. a. Possession related to official duties? Probably yes. b. Just happens to have document? Probably no.

Trial-Level Remedies 1. ... ... Each prospective juror is questioned prior to being impaneled in an effort to discover bias Two challenges a. Challenge for ... -An attorney must convince the court there is a good reason for this person not to sit on the jury -No limit on the number of challenges for either prosecutor or defense attorney b. ... challenges -Challenge can be exercised without cause, and the judge has no power to REFUSE such a challenge -A limit on the number of challenges - depends on case, kind of crime, state statute, judge 2. ... of ... Changing the location of the trial (jury is selected from citizens in the new community) Costly, effectiveness depends on how far the trial is moved from the city in which the crime is committed 3. ... of ... Instead of moving the trial to another city, the court imports a jury panel from a distant community Costs state less money (pay expenses of jurors the duration of the trial) 4. ... A trial is delayed The defendant may spend this additional time in jail if bail has not been posted. It is also possible, even likely, that when the trial is finally set to begin, publicity about the case will reappear in the mass media 5. ... Once a jury is impaneled, its members are instructed by the judge to render their verdict in the case solely on the basis of evidence presented in the courtroom Failure to follow the orders can result in removal from the jury, citation for contempt of court or both 6. ... -Prejudicial information may develop DURING the trial, and admonition might not be enough to shield from this publicity The members of the panel are isolated from outsiders during the trial! They are not allowed to go home each evening but are housed in a hotel. They eat their meals together, relax together, go to and from the courthouse together. Telephone calls and email (if permitted) are screened by court personnel. Newspapers and TV news broadcasts are also screened for stories about the trial -Can be in some states for trials beyond a day or cases involving the death penalty -Usually only if judge specifically orders it -Could cost state money -Jurors money and time -Many attorneys fear the criminal justice system may be compromised as well. Sequestration may keep jurors free from unwanted prejudicial publicity about the case, but could generate a prejudice in jurors of a different kind, a prejudice against one party or the other for keeping them away from family and friends for an extended period Restrictive Orders Restrictive order: -Orders aimed at the ... in the ..., limiting what they can tell the ... and ... about the pending legal matters Gag order: -Orders that are aimed at the ..., limiting what can be ... or ... All specifically tailored to the ... at hand Gag orders limited by... Nebraska Press Association test (1976) -Restrictive orders levied against the ... are c... j... only if: 1. I... and p... ... concerning the case is certain. 2. No other ... ... might mitigate the effects of ...-... ... 3. The restrictive order will in fact effectively ... ... material from reaching potential ... ... r... is the ..., not the ...! -Press has no a... ... to gain ... to ... court information, but it cannot be punished for ... it! -If the information was ... o..., the press may ... it! . . . . . . . Trial-Level Remedies Even though the Skilling test is applied at the appellate level, there are things trial judges can do to mitigate possible prejudicial publicity from reaching potential members of the jury 1. ... ... -During jury selection, ... jurors to see if they may sit on the final jury for trial -Example: May have a questionnaire and then interrogate for ... (See list of names, do you know any of these people?) -Case on officer shooting: What are your opinions on police? -Case on robbery: Have you ever been robbed? If yes, you may not be a part of the jury for this case - may be more sympathetic to victim claiming the same thing Two challenges to potential jury members a. Challenge ... ... -Attorney must convince the court there is good reason not to sit this individual on the final jury - ... as long as there is a ...! -Deep-seated prejudice (gender, race, etc.) or prejudice for the type of case (Example: Victim of robbery and the case is about robbery), acquaintance of either party b. ... challenges -... number! Depends on the case, crime, state statute and even judges ("No more ... challenges!")-Challenges without ..., judge has no power to ... such a challenge! [giving discretion to prosecutors and defense attorneys to weed out those who may be auspicious or ... to your ...! Finding a jury more likely to acquit (if defense attorney) or convict (if prosecutor)] -Prosecutors and defense attorneys may use ... challenges to skew to balance out ... and ... dynamic of the jury (making a friendly ... or ... jury (same blanks) for your client) Example: The defendant is Black Defense attorney - need to put more jurors who are people of color (so issue a ... challenge on potential white jurors) Prosecutor - need to put more white jurors (so issue a ... challenge on potential POC jurors) -Gets used for racially biased reasons or as a defense against racial bias! Still a problem 2. ... of ... -All participants of a trial ... to a ... ... (prosecutor, defense attorney, judge, defendant, witnesses), jury is selected from this ... ... Example: Crime in Tuscaloosa [too hot of a climate], move the trial to Bessemer, all participants relocate. Jury is selected from Bessemer -Particularly useful to defend from prejudicial publicity in a significant community (especially small communities) 3. ... of ... -Trial stays local but ... ... from a distant community Example: Crime in Tuscaloosa, trial stays in Tuscaloosa but ... ... in Bessemer, ... are bussed to Tuscaloosa (new ...) Either way (... of ... or ... of ... #2 and 3) sourcing a ... from another community 4. ... -... a trial! -... can reduce prejudicial publicity as the public eye shifts to other issues or changes in the population occur -No movement, just letting ... (same blank) pass 5. ... -At the start of a trial, ... the jury not to speak with others about the trial, no outside research/investigation, only consider evidence presented in the trial (in other words, don't be ...! Be an ... juror!) -... - studies show it does work. People respect the judicial system (see the judge in a position of authority, concerned if they violate these judge's orders, may be held in contempt) -Seems the weakest but is strong! Just because it is part of every case is voir dire 6. ... -Jury is kept in a ..., no ... ... unless monitored/screened by court personnel and all phone calls and email correspondence must be monitored/screenedA serious move - depriving jury of family and friends (deprived of their 1st Amendment right to consume what they want!) Example: OJ Simpson murder trial, rare typically only ... cases In addition to these trial-level remedies... Restrictive orders are the enforcement mechanisms (teeth) of the trial courts - can affect press or others involved in the trial - cannot talk about matters of the case! Restrictive order -Orders aimed at the ... in the ..., limiting what they can tell the ... and ... about the pending legal matters Gag order -Orders that are aimed at the ..., limiting what can be ... or ... All specifically tailored to the ... at hand! ... LAW - judge's ability to weigh in and give orders Gag orders limited by the Nebraska Press Association Test (1976) -Restrictive orders levied against the ... are ... ... only if [3 circumstances]: 1. ... and ... ... concerning the case is certain (there is going to be a lot of press attention on this case) 2. No other ... ... might ... the ... of ...-... ... 3. The restrictive order will in fact ... ... ... material from reaching ... ... Prior restraint is the ..., not the ...! -Government prevents you from publishing - rare only in extenuating circumstances -Press has no ... ... to gain access to ... ... information, but it cannot be ... for ... it! -Goes back to our earlier discussions - press have no ... ...! What applies to the general public/ordinary citizen applies to the press -If the information was ... ..., the press may ... it! -SAME CONCEPT: Information may be ... obtained by another source but if the press isn't involved with the ... obtainment, not liable! As long as the press is not subject to a gag order, they are not liable for punishment for publication!

uVoir dire uChallenge for cause uPeremptory challenges uChange of venue uChange of veniremen uContinuance uAdmonition uSequestration uRestrictive order uOrders aimed at the participants in the trial, limiting what they can tell the public and reporters about the pending legal matters uGag order uOrders that are aimed at the press, limiting what can be published or broadcast uAll specifically tailored to the case at hand uLimited by Nebraska Press Association Test (1976) uRestrictive orders levied against the press are constitutionally justified only if: 1.Intense and pervasive publicity concerning the case is certain. 2.No other alternative measure might mitigate the effects of pre-trial publicity. 3.The restrictive order will in fact effectively prevent prejudicial material from reaching potential jurors. uPrior restraint is the exception, not the rule. uPrior restraint is the exception, not the rule. uPress has no affirmative right to gain access to confidential court information, but it cannot be punished for publishing it. uIf the information was lawfully obtained, the press may publish it. Voir dire Interviewing, biases Challenge for cause Unlimited, causePeremptory challenges, limited, cause, refuse, beneficial to your clientGender, racialTransported, different community, new community Change of veniremen, import jury, voir dire, jurors, jury Continuation, delaying, time Admonition, admonishingBiased, impartial Instructions Sequestration Hotel, media consumption High-profile Restrictive order Orders aimed at the participants in the trial, limiting what they can tell the public and reporters about the pending legal matters Gag order Orders that are aimed at the press, limiting what can be published or broadcast All specifically tailored to the case at hand Limited by Nebraska Press Association Test (1976) Restrictive orders levied against the press are constitutionally justified only if: Intense and pervasive publicity concerning the case is certain. No other alternative measure might mitigate the effects of pre-trial publicity. The restrictive order will in fact effectively prevent prejudicial material from reaching potential jurors. Prior restraint is the exception, not the rule. Prior restraint is the exception, not the rule. Press has no affirmative right to gain access to confidential court information, but it cannot be punished for publishing it. If the information was lawfully obtained, the press may publish it. EQUITY Special rights Illegally, illegal

"Right of Publicity" Exceptions 1. ... and ... ... -News images on the front page of a paper, this is protected under the ... exception (cannot sue). Just because a newspaper is for-profit and trying to sell papers through images on the front page, there is still a clear news reason for why someone is on the front cover -Example: Someone runs for election, ends up on the front cover - there is clearly a news reason why they are on the front page -Things can get more complicated with magazines: If I have my image published without consent by Vogue to sell magazines. The news reason becomes a little less clear -A newspaper runs a photo of John Smith on the front page about his car rolled over several times during a high speed police pursuit. Smith sues for invasion of privacy, arguing his picture on the front page of the paper attracted readers to the paper, resulted in the sale of newspapers and therefore was used for commercial or trade purposes. More than a century ago New York courts first rejected this argument, ruling the law was intended to punish commercial use, not the dissemination of information. And since that ruling other courts have consistently rejected this claim. The US Supreme Court has ruled the fact that newspapers and books and magazines are sold for profit doesn't deny them the protection of liberty of expression. 2. ... ... -If you are in the background but not the focus -Example: Walking in background and get placed in the commercial, you cannot then sue for monetary damages 3. ... ... -.../... -If you are on the cover for one magazine issue and then photo is used again to advertise for that magazine, cannot sue -Example: ESPN runs cover on Warriors winning NBA playoffs, Curry on front. Run ads in other publication and use that same photo again - Curry cannot sue (for the first publication due to ... and for the second publication due to ... ...) -BUT it still cannot apply to ... ... ("Curry reads ESPN magazine, you should too!") -There is the tendency toward ... e... (the reason people on cover of magazines is increasingly conflated with entertainment logic) (expand the protection than restrict it) 4. ... (for selling purposes) Your BEST exception -Burden on...? -Which type is the best? Which is harder to prove but still works? What is another example? When ... doesn't work! 1. A ... ... has passed -... consent diminishes with ...; ... often doesn't (duration is expressed in the terms of the contract) 2. A person can't legally ... NONE OF THESE ARE IRONCLAD, but generally speaking there are vulnerable populations where ... can be more complicated a) ... (not without ... approval) b) ... ... c) ... 3. ... ... of the agreement -Example: Michael Jordan agrees for likeness to be used on shoes (in the agreement) but then you also apply his likeness to bracelets (going beyond the terms of the agreement) Post-Mortem Publicity Rights Varies by ...! -California -Virginia -New York After these years, can use their likeness but generally need to check with specific state requirements -Get permission from ... or ... that manages the ...

1. News and public interest -Newsworthiness 2. Incidental use 3. Booth Rule -Republication/rebroadcast -Tendency toward expanding exception -First newsworthiness; second Booth rule -Cannot apply to implicit endorsement -Expanding exception 4. Consent -Burden on defendant -Written is best; oral harder to prove but works; implicit (before someone sues, may post on social media, "Wow look I'm on Vogue! How cool!" but later sue vogue) you're implying you consented before you sued When consent doesn't work -Long time has passed (oral; time; written) A person can't legally consent -Under age (guardian) -Mental illness -Incarceration Substantial alteration Post-mortem publicity rights -Varies by state -70 years in California, 20 years in Virginia, none in New York -Get permission from estate or entity that manages estate

Protecting Sources (Example: Promising a source not to reveal their identity) Reporters gather more information than is in the finished product. Extra information can help government officials, law enforcement, plaintiffs in a libel or invasion of privacy suit. Journalists are often target to certain legal situations Tension P... ... (stay true to your word, not ... ...) vs. avoid ..., ... ... (if you deny a court order to disclose, could be under ... of ...!) Situations 1. ... ... - not about guilt or innocence, about ...! (...) -Want access to a journalist's information on a defendant or plaintiff in a lawsuit Courts are ... likely to ... a journalist's refusal to testify Courts will ask three questions: 1. Has the person seeking information from the reporter shown the information has c... ... in the case? -No ... ...! -"I know this journalist has talked to this source and they have this pertinent information!" 2. Does the information get to the ... of the ... before the court? Example: Divorce case, plaintiff trying to prove reason for divorce is infidelity. Knows the defendant has spoken to a journalist, looking for a more favorable alimony But can only find journalist information on something tangential to infidelity (court would rule in favor of the journalist) 3. Can the person who wants the information show the court there is no other ... ... for this information? We see a tendency where if it is a ... ..., the person who wants disclosure has to prove a ... to receive the information they want disclosed! Journalists are in their ... footing - the person seeking information must know you have the information and the information they want must be pertinent to their case (VERY RARE AND HARD TO PROVE) Still may have to file a ... even if you do not have to go to court in the end, call your ...! They will set you up with the in-house council/lawyer to help you out 2. ... ... -Someone in violation of the ... (state vs. defendant) What we saw with ... cases is the courts were more likely to (probably would) side with the press (asserting a ... ... right against no other ... ...!) -Courts ... likely to ... a journalist's refusal to testify - may ... ..., do ... .. (contempt of court) or choose to speak up -There is ...'s ... in many states but is balanced against the ...'s ... ... rights (right to compel witnesses to testify on their behalf) - now we have two ... ... to balance against one another! Harder fight for the ...! Courts more likely to side with the ... ... claim! 3. ... ... and ... ... Branzburg v. Hayes (1972) -Supreme Court decision...? -The Court ruled there is no ... ... ... for journalists to refuse to reveal ... of ... ... or other ... information when called to testify before a ... ...! -Applied ...! Only covers ... ... or ... ... 3 dissenters - set up a test for when a reporter should be able to protect the ... of ... informant/... -Dissenters were overruled but laid out a methodology Government must show 1. ... ... to believe a reporter has information ... ... to a specific ... of the law 2. Cannot be obtained by ... ... less ... of ... ... rights (other means like interviewing other members or parties of a suit/case) 3. State has a ... and ... ... in the information (... to the law broken or the act under criminal damages) Lower courts have used this test to assess if a journalist is compelled to testify in ... ... ...! Use this test for ... ... not covered by the majority in Branzburg Example: When it's a state prosecutor (not a ... ... or ... ...), is a journalist compelled to testify? STRONG INCLINATION - courts can compel you to testify on ... ...! . . . . . . . . . . Protecting Sources a. Civil -Courts are ... likely to ... a journalist's refusal to testify Three questions: 1. Has the person seeking the information from the reporter (e.g. the ...) shown that this information is of ... ... in the case? 2. Does this information go to the ... of the ... before the court? 3. Can the person who wants the information show the court that there is no ... ... ... for this information? b. Criminal -Courts are ... likely to ... a journalist's refusal to testify -...'s ... must be balanced against the ... ... right of defendants to ... ... on their ... c. Grand Juries and Special Prosecutors -Branzburg v. Hayes (1972) Branzburg v. Hayes (1972) -U.S. Supreme Court, ...-... decision -Majority found no ... ... privilege for journalists to ... to ... the ... of ... ... or other information when called to testify before a ... ... -Courts have applied ... to only cover ... ... or ... ... -Three dissenters developed a test for when a reporter should be able to ... ... of the ... -Requires ... to show the following: 1. There is a ... ... to believe that the reporter has information that is ... ... to a ... ... of the law 2. The information sought cannot be obtained by ... ... less ... of ... ... rights 3. The state has a ... and ... ... in the information Lower courts have used this test to assess whether journalists should be compelled to testify at other ... ...

Protecting sources (not revealing your sources' identity) vs. avoiding fines, jail time (contempt of court) 1. Civil cases - liability (lawsuits) MORE, ACCEPT 1. certain relevance -Fishing expeditions 2. Heart of the case 3. Alternative source Civil lawsuit, lot BEST Petition, editor Criminal cases Law Civil, 1A, constitutional right LESS, accept - pay fines or do jail time Reporter's privilege, defendant's 6A rights Two constitutional rights 6A claim Grand juries and special prosecutors 5-4 1A privilege, names of confidential sources or other confidential , grand jury Grand juries, special prosecutors Identity, confidential source 1. Probable cause, clearly relevant, violation 2. Alternate/alternative means, less destructive, 1A 3. Compelling and overriding interest (central) Other criminal proceedings Other decisions (not grand juries, special prosecutors) Criminal matters uCivil uCourts are most likely to accept a journalist's refusal to testify uThree questions: uHas the person seeking the information from the reporter (e.g. the plaintiff) shown that this information is of certain relevance in the case? uDoes this information go to the heart of the case before the court? uCan the person who wants the information show the court that there is no other alternative source for this information? uCriminal uCourts are less likely to accept a journalist's refusal to testify uReporter's privilege must be balanced against the 6th Amendment right of defendants to compel testimony on their behalf uGrand Juries and Special Prosecutors uBranzburg v. Hayes (1972) uU.S. Supreme Court, 5-4 decision uMajority found no 1st Amendment privilege for journalists to refuse to reveal the names of confidential sources or other information when called to testify before a grand jury. uCourts have applied narrowly to only cover grand juries or special prosecutors. uThree dissenters developed a test for when a reporter should be able to protect identity of the confidential uRequires government to show the following: uThere is a probable cause to believe that the reporter has information that is clearly relevant to a specific violation of the law uThe information sought cannot be obtained by alternative means less destructive of 1st Amendment rights uThe state has a compelling and overriding interest in the information uLower courts have used this test to assess whether journalists should be compelled to testify at other criminal proceedings

The three-part Miller test is the legal test for obscenity in the U.S. today. But the Supreme Court, lower courts and other elements of government have with varying degrees of success attempted to raise additional standards to judge erotic material Variable Obscenity -Supreme Court ruled it is permissible for states to adopt variable obscenity statutes. Material that may be ... distributed and sold to ... may be ... for distribution or sale to ..., usually anyone under the age of ...; Variable obscenity laws allow Hustler to be sold to ... but not to ... Concept emerged from Ginsberg v. New York (1968) -Supreme Court ruled the First Amendment did not bar New York state from prosecuting owner of a Long Island luncheonette who sold four so-called girlie magazines to a 16-year-old boy. The magazines contained female nudity, could have been ... sold to an ... -Justice Brennan said the state could maintain one definition of ... for ... and another for ... because the Supreme Court recognized the important state interest in protecting the welfare of our .... But even variable obscenity statutes are not without their c... ...! Erzoznik v. City of Jacksonville (1975) -Supreme Court struck down a variable obscenity statute because the definition of material that could not be distributed to ... was not specific enough -City ordinance barred drive-in theaters from showing films in which either female breasts or buttocks were exposed if theater screen was visible from street. The ordinance was justified as means of protecting young people from exposure to such material. "Only in relatively ... and w...-... circumstances may government bar dissemination of protected material to ..." -Banning the exhibition of ... simply is not ... enough; only materials that have significant erotic appeal to ... may be suppressed under such a statute. A simple ban on all ..., regardless of ..., j... or other factors violates the ... ...! Though states and cities may adopt variable obscenity laws, these regulations cannot interfere in any with the flow of ... ... material to ...! -One permissible way to strike the balance between allowing ... to see sexual content and shielding ... is blinder racks (opaque covers) where magazines are sold (cover but the very top of the magazine) -Another permissible way is for stores that rent or sell adult content to ... that content into a separate section of the store only ... can enter Tricky issue is how to define the material ... cannot purchase! The material is not ... under Miller (so ... can purchase it) but any definition drafted broadly as to prohibit the sale of all images of ... to ... (would sweep up biology textbooks) -Many states use the phrase "... to ..." to describe sexual material that is permissible for ... to purchase but not ...! These definitions often are tweaked or modified versions of the ... t...! Example: Florida uses the term "... to ..." and defines it as any image "depicting nudity, sexual conduct or sexual excitement when it: a) predominantly appeals to a ..., s... or m... interest; b) is ... ... to prevailing s... in the ... community as a whole with respect to what is suitable material or conduct for ...; and c) taken as a ..., is without serious ..., ..., ... or ... ... for ..." Child Pornography -One of the most reviled forms of expression in the U.S. today, yet convictions for distributing and possessing it via the ... and on ... are common (Salapuddin, Maiorano) -The ..., ... and ... of child pornography is not protected by the ... ... -Federal statutes outlaw images of minors - people under age ... - engaged in "sexually explicit conduct" including ... in..., b..., and ..., as well as images depicting a "l... e... of the ... or ... area" -Laws are justified by both the ... and ... harm minors incur during its creation as well as by fact images are a p... r... of participation and exploitation that could hunt the children when they grow up if discovered by others The kind of material outlawed does not have to meet the test for ... outlined in the ... ruling! Images of minors engaged in sexually explicit conduct do not have to rise to the level of ... under ... for them to constitute child pornography - an illegal product - and fall outside scope of ... ... protection A ... image of a child doesn't always constitute child pornography There must be a l... e... of the ... or ... area to constitute child pornography, such as tightly focused or unnaturally zoomed-in view of those areas Example: A naked photo of you as a baby or toddler washed in a bathtub doesn't constitute child pornography Dost factors - six factors courts often weigh to determine if an exhibition is l..., including 1. Whether the f... p... of the depiction is on the child's ... or ... area 2. ... for the image is sexually suggestive, that is a ... or ... generally associated with sexual activity 3. Child is depicted in an unnatural ... or in inappropriate ..., considering the child's ... 4. Child is fully or partially ... or ... 5. Image suggests sexual ... or ... to engage in a sexual activity 6. And image is intended to elicit a ... ... from a ... Not all factors need to be present to constitute a ... exhibition; rather, the factors are considered h... in what courts call a "Totality of the Circumstances" approach Child Pornography Prevention Act (CPPA) (1996) -Congress adopted an ... to ... federal child pornography law that barred the sale and distribution of any images that "..." to depict minors performing sexually explicit acts -Under this statute, child pornography is defined to include not only ... images (photos, videos, films) of children but also ...-g... images and other pictures g... by electronic, mechanical, or other means in which "such visual depiction is or appears to be a minor engaging in sexually explicit conduct" -The ... child pornography laws were justified to protect children from being e..., the CPPA was justified as means to protect children from ... and ... ..., people whose criminal behavior may be s... by such images -Law specifically stated no prosecution can be maintained if the material was produced by ... and wasn't advertised, promoted, described or presented in such a way to suggest children were in fact depicted in the images U.S. Supreme Court ruled important segments of the law v... the ... ... (2002) -Justice Kennedy wrote CPPA "prohibits speech that records no ... and creates no ... by its production" Instead, the statute prohibits the ... d... of an ... - that of teenagers engaging in sexual activity - that is a fact of modern society and has been theme in art and literature throughout the ages -Court ruled the justification for the law was ... since Congress failed to produce any evidence of more than a r... c... between speech that might encourage ... or ... and any resulting ... ... [The mere tendency of speech to encourage ... a... is not a sufficient reason for banning it] PROTECT Act (2003) -After Supreme Court struck down CPPA, Congress passed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 -PROTECT Act prohibits a person from k... ..., ..., or ... material "in a manner that reflects the belief, or that is intended to cause ... to believe" that the a... material is child pornography involving ... ..., even if the underlying material does not in fact include ... ..., or is otherwise completely innocuous -2008, Supreme Court ... (United States v. Williams) the PROTECT Act, concluding it was neither ... nor ... and finding a crime is committed under the act "only when a ... believes or intends the ... to believe that the subject of the proposed transaction depicts ... ...!" NOT overturning Ashcroft v. Free Speech Coalition (2002) involving CPPA "S... child pornography will be available as ever, so long as it is offered and sought, and not as ... child pornography!" One can be convicted even if the advertised material is not ... child pornography, it is required for conviction that "the ... hold and make a statement that reflects his belief the material is child pornography; or he communicate in a manner intended to cause ... to believe so" In what circumstances does the PROTECT Act apply? "An Internet user who ... child pornography from an undercover agent violates the statute, even if the officer possess ... child pornography. Likewise, a person who ... v... child pornography as depicting ... children also falls within the reach of the statute" Ohio v. Tooley (2007; Ohio Supreme Court) -Twist on the U.S. Supreme Court's 2002 ruling involving CPPA and "..." child pornography -Upheld state statute that prohibited b... or "m..." images that digitally combine separate photos of ... adults and children to create the appearance of sexual acts -Prosecutors must prove beyond a ... ... (standard of proof in criminal case) a ... child is pictured in m... photograph to gain a conviction, while images that involve only ...-g... and completely f... images of children remain protected under ... ... CRITICAL DISTINCTION between -Virtual child pornography (is protected) (either entirely ...-g... or created using only ...) -Morphed child pornography (not protected) (altering a ... child's image to make it appear the child is engaged in some type of sexual activity)

Other Standards The three-part test developed in Miller v. California is the legal test for obscenity in the U.S. today. But the Supreme Court, lower courts and other elements of the government have with varying degrees of success attempted to raise additional standards by which to judge erotic material Variable Obscenity The Supreme Court has ruled it is permissible for states to adopt variable obscenity statutes. Material that may be legally distributed and sold to adults may be banned for distribution or sale to juveniles, usually anyone under the age of 18. Variable obscenity laws allow Hustler to be sold to adults but not to minors. This concept emerged from Ginsberg v. New York in 1968. In Ginsberg the Supreme Court ruled the 1A did not bar New York state from prosecuting the owner of a Long Island luncheonette who sold four so-called girlie magazines to a 16-year-old boy. The magazines, which contained female nudity, could have been legally sold to an adult. Justice Brennan said the state could maintain one definition of obscenity for adults and another for juveniles because the Supreme Court recognized the important state interest in protecting the welfare of children. But even variable obscenity statutes are not without constitutional limits. 1975, Supreme Court struck down such a law in Erzoznik v. City of Jacksonville because the definition of material that couldn't be distributed to juveniles was not specific enough. A city ordinance barred drive-in theaters from showing films in which either female breasts or buttocks were exposed if the theater screen was visible from the street. The ordinance was justified as a means of protecting young people from exposure to such material. "Only in relatively narrow and well-defined circumstances may government bar dissemination of protected material to children," Justice Powell wrote. Banning the exhibition of nudity is simply not narrow enough; only materials that have significant erotic appeal to juveniles may be suppressed under such a statute, he wrote. A simple ban on all nudity, regardless of context, justification or other factors, violates the First Amendment. Although states and cities may adopt variable obscenity laws, these regulations cannot interfere in any way with the flow of constitutionally protected material to adults. One permissible way of striking the balance between allowing adults to see sexual content but shielding minors from it is the use of so-called BLINDER RACKS (opaque covers) where magazines are sold. Blinder racks cover up all but the very top parts of magazines, thus allowing adults to view the magazines' titles but overing up all the sexual images below them that minors should not see. Ordinances that require the use of blinder racks to cover up the lower two-thirds of magazines are perfectly legal. Another permissible way of striking the balance is to require a store that rents or sells adult content to segregate that content into a separate section of the store that only adults can enter. The tricky issue is how to define the material that minors cannot purchase. The material is not obscene under Miller (adults thus can purchase it), but any definition cannot be drafted so broadly as to prohibit the sale of all images of nudity to minors (that would sweep up biology textbooks). Many states use the phrase "harmful to minors" to describe sexual material that is permissible for adults to purchase but that minors may not buy. These definitions often are tweaked or modified versions of the Miller test. Example: Florida uses the term "harmful to minors" and defines it as any image "depicting nudity, sexual conduct or sexual excitement when it: a) predominantly appeals to a prurient, shameful or morbid interest; b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for minors; and c) taken as a whole, is without serious literary, artistic, political or scientific value for minors." Child Pornography Child pornography is one of the most reviled (criticized/condemned) forms of expression in the U.S. today, yet convictions for distributing and possessing it via the Internet and on smartphones are common. In 2021, Robert Salapuddin of Kansas City, MO, was sentenced to 12 years in prison for possessing child pornography. Salapuddin admitted to using various Internet apps to receive and possess videos and images of girls as young as 13 engaging in sexually explicit conduct. Investigators found more than 35 videos of child porn on his computers, many of which appeared to be recordings from web cams or chat programs. Also in 2021, Gino Alexander Maiorano of Clinton, MO, sentenced to 25 years in prison for producing child porn involving a toddler. Maiorano was arrested after he sent two sexually explicit photos and videos of the 2-year-old victim to an undercover officer in an online Kik chat group The production, distribution and possession of child pornography is NOT protected by the First Amendment. Federal statutes outlaw images of minors - people under age 18 - engaged in "sexually explicit conduct" including sexual intercourse, bestiality and masturbation, as well as images depicting a "lascivious (revealing) exhibition of the genitals or pubic area" Laws against child pornography are justified by both the physical and emotional harm minors incur during its creation, as well as by the fact that images are a permanent record of participation and exploitation that could haunt the children when they grow up if discovered by others It is important to note the kind of material outlawed does not have to meet the test for obscenity outlined in the Miller ruling. Images of minors engaged in sexually explicit conduct does not have to rise to the level of obscenity under Miller for them to constitute child pornography - an illegal product - and fall outside the scope of First Amendment protection A nude image of a child doesn't always constitute child pornography. There must be a lascivious exhibition of the genitals or pubic area to constitute child pornography, such as a tightly focused or unnaturally zoomed-in view of those areas. Thus, a naked picture of you as a baby or toddler being washed in a bathtub doesn't constitute child pornography. Courts often weigh six factors, known as the Dost factors (based on a case by that name), to determine if an exhibition is lascivious, including... 1. Whether the focal point of the depiction is on the child's genitalia or pubic area 2. Setting for image is sexually suggestive, that is, a place or pose generally associated with sexual activity 3. Child is depicted in an unnatural pose or in inappropriate attire, considering the child's age 4. Child is fully or partially clothed or nude 5. Image suggests sexual coyness or a willingness to engage in sexual activity 6. And image is intended to elicit a sexual response from a viewer Not all the factors need to be present to constitute a lascivious exhibition; rather, the factors are considered holistically in what courts sometimes call a "TOTALITY OF THE CIRCUMSTANCES" approach 1996, Congress adopted an amendment to the original federal child pornography law that barred the sale and distribution of any images that "appear" to depict minors performing sexually explicit acts. Under this statute, child pornography is defined to include not only actual images (photos, videos, films) of children but also computer-generated images and other pictures that are generated by electronic, mechanical or other means in which "such visual depiction is, or appears to be, a minor engaging in sexually explicit conduct" Whereas the original child pornography laws were justified as a means to protect children from being exploited, the 1996 Child Pornography Prevention Act (CPPA) was justified as a means to protect children from pedophiles and child molesters, people whose criminal behavior may be stimulated by such images. The law specifically stated that no prosecution can be maintained if the material was produced by adults and was not advertised, promoted, described or presented in such a way as to suggest children were in fact depicted in the images 2002, U.S. Supreme Court ruled important segments of the law violated the First Amendment. Justice Anthony Kennedy wrote CPPA "prohibits speech that records no crime and creates no victims by its production" Instead, he said "the statute prohibits the visual description of an idea - that of teenagers engaging in sexual activity - that is a fact of modern society and has been a theme in art and literature throughout the ages" The court also ruled the justification for the law was insufficient since Congress failed to produce any evidence of more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. "The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it" After the Supreme Court STRUCK DOWN CPPA, Congress passed the PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003) which was in part aimed at curbing the promotion (or 'pandering') of child pornography. By its terms, the PROTECT Act prohibits a person from knowingly advertising, promoting or soliciting material "in a manner that reflects the belief, or that is intended to cause another to believe" that the advertised material is child pornography involving REAL MINORS, even if the underlying material does not, in fact, include real minors or is otherwise completely innocuous (not harmful, offensive). In 2008, U.S. Supreme Court in United States v. Williams UPHELD the PROTECT Act, concluding it was neither overbroad nor vague and finding a crime is committed under the act "only when a speaker believes or intends the listener to believe that the subject of the proposed transaction depicts REAL children" Writing for majority opinion, Justice Antonin Scalia made it clear the Supreme Court was not overruling its 2002 decision in Ashcroft v. Free Speech Coalition involving CPPA. "Simulated child pornography will be available as ever, so long as it is offered and sought as such, and not as real child pornography" Though one can be convicted under the PROTECT Act even if the advertised material is not real child pornography, Scalia interpreted the act as requiring for conviction, "the defendant hold and make a statement that reflects, the belief that the material is child pornography; or that he communicate in a manner intended to cause another so to believe" In what circumstances does the PROTECT Act apply? Scalia observed "an Internet user who solicits (asking for) child pornography from an undercover agent violates the statute, even if the officer possess no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute" In an interesting twist on the U.S. Supreme Court's 2002 ruling involving CPPA and "virtual" child pornography, the Ohio Supreme Court in 2007 in Ohio v. Tooley upheld a state statute prohibiting blended or 'morphed' images that digitally combine and graft separate photos of actual adults and real children in order to create the appearance of sexual acts. Under the OH statute, prosecutors in that state must still prove beyond a reasonable doubt (standard of proof in a criminal case) that a real child is pictured in the morphed photograph in order to gain a conviction while, consistent with the U.S. Supreme Court's ruling in the Free Speech Coalition case involving CPPA, images that involve only computer-generated and completely fictitious images of children remain protected under the 1A. The OH Supreme Court drew a critical distinction between: Virtual child pornography (images either entirely computer-generated or creating using only adults), which is protected by the 1A AND Morphed child pornography (images that are created by altering a real child's image to make it appear the child is engaged in some type of sexual activity), which is not protected by the 1A

In some important cases, defense attorneys were successful in raising ... ... issues and courts were asked to balance the protection of freedom of ... with the protection of a ...'s ...! -10th Circuit, blocked attempt by Major League Players Association to stop the distribution of a set of s... baseball cards that m... f... of many well-known players. The court said even though the cards used c... of the players, and the sale was a ... enterprise, the cards were ... or ... c... and thus protected by the 1A! (Cardtoons v. Major League Baseball Players Association) Comedy III Inc. v. Gary Saderup (2001) -California Supreme Court fashioned a useful test for determining when the use of a celebrity's likeness constituted an infringement on the right of ..., and when it is protected ... ... -... ... test! -Charcoal drawing of Three Stooges by Saderup Making a single drawing isn't a problem, law exempts single and original works of ... ... from the purview of the CA statute -BUT Saderup went on to print the image on t-shirts, sued by Comedy III Inc., company owning the rights to the Stooges. ... ... issues in this case: the creative appropriation of celebrity images can be an important avenue of ... e...! -The importance of celebrities in society means the right of publicity has the potential of ... significant e... by suppressing 'a... v...' of celebrity images that are 'iconoclastic, irrelevant, or attempt to redefine the image' Court focused on the 't... elements' in the reproduction 1. If the reproduction is simply a t... of the celebrity's image, then ... ... concerns are minimal 2. But it is a different matter if the user added other elements, transformed the image into a ..., used the name in a song, l... the prominent person, or in some way used the likeness as a vehicle for the ... of o... or ... - then the rights of ... ... would take precedence over the right of a celebrity to protect their right to publicity Saderup used a literal depiction of the Stooges for ... gain without adding significant expression, held liable for violating the publicity of the rights of Comedy III Productions Examples of the transformative use test -9th Circuit rejected First Amendment defense to right of publicity claims involving video game Madden NFL made by Electronic Arts -EA paid National Football Players Inc., licensing arm of NFL Players Association, annual licensing fees to use current players' likenesses -But EA didn't obtain license to use likenesses of former players ('historic teams') - not identified by name or photograph but described by position, years in NFL, height, weight, skin tone, relative skill level in aspects of the sport -Some of the former players sued under California statutory and common law EA claimed use of former players' likenesses protected under transformative use defense formulated by California Supreme Court -9th Circuit ruled the video game wasn't ...! Replicates players' ... ... and allows users to manipulate them in the performance of the ... ... for which they are known in ... ... (neither the players' likenesses or the graphics and other background content were transformed) -Documentary example - Bobby Brown example - the court dismissed claims because the documentary was an e... work (than a ... a...) and a report on a matter of ... ... (n...)! -Painting example - commemorating Tiger Woods's 1997 tournament victory (Woods in foreground, six golfing greats in background) (sold art prints - sued by ETW Corporation, violating of right to publicity) - The work was c... and t..., and this was made worthy of ... ... protections. "The substantial c... content of the work outweighed any adverse effect on ETW's market." -Simpsons character example, likeness was t... and protected by ... ... College football video games, former players successfully suing Electronic Arts for violating right of publicity (Appropriation involving video games will continue to be an issue moving forward) -Used real college names, uniforms, fight songs, mascots. Virtual players closely resembled real-life players and shared their v... and b... information -Hart sued EA alleging the use of his likeness and biographical information violated his right of publicity - the ... ... test, the proper test to balance Hart's right of ... interest against EA's interest in ... of ... (3rd Circuit) -"The t... use alters the meaning behind the use of a celebrity's likeness perhaps by l..., adding s... ..., or placing the celebrity in a f... or im... setting." The question is whether Hart's identity was s... t... in the video game. Not only his p... l... but his b... d... Avatar closely resembled him (hair color, hair style, accessories, biological information) The critical factor - the ... in which his identity was used - 'the digital Hart does what the actual Hart did while at Rutgers' (determined use was not ...!) vs. Hamilton and 'Gears of War' example B... differences between the character and celebrity, differences in c... and p..., and the s.../context is very different from how the celebrity achieved fame An important contrary ruling involving a celebrity since the Saderup test in 2001, decided by Missouri Court of Appeals in 2006 -'...-...' test Speech with a predominant ... purpose is protected, while speech with a predominant ... purpose is not. This is a highly ... test that has never been used by another court! Burden falls on the judge to determine what is ... and what is ... (Todd McFarlane and Tony Twist example - it was enough McFarlane intended to create the impression the hockey player was associated with the comic book, regardless of if he was 'known' at the time (had no ... benefit) Similar issues of t... use and p... arise in ... cases! The ... ... test fashioned in Saderup is largely borrowed from fair use consideration in ... laws -7th Circuit, Brownmark Films v. Comedy Partners. The underlying purpose of the recreation was to comment on and critique the social phenomenon that is the viral video - it imitates the creation while l... one well-known example (this kind of p... use has obvious t... value)

In some important cases, defense attorneys were successful in raising First Amendment issues and the courts were asked to balance the protection for freedom of expression with the protection of a celebrity's image. 10th US Circuit Court blocked attempt by Major League Players Association to stop the distribution of a set of satirical baseball cards that made fun of many well-known players. The court said even though the cards used caricatures of the players, and the sale of the items was a commercial enterprise, the cards were parodies or social commentary protected by the 1A. More recently, a federal court ruled the use of MLB players' names in online fantasy baseball leagues didn't amount to making a commercial use of a player's identity. In an important ruling in 2001, the California Supreme Court fashioned a useful test for determining when the use of a celebrity's likeness constitutes an infringement on the right of publicity, and when it is protected free expression. Known as the transformative use test, cited favorably by other courts. Artist named Gary Saderup created a charcoal drawing of the Three Stooges comedy team. Making a single drawing isn't a problem since the law exempts single and original works of fine art from the purview of the California statute. But Sanderup went on to create lithographic prints and T-shirts that also contained the drawing and was sued by Comedy III Inc., company that owns the rights to the Stooges. Justices on the California high court noted immediately the First Amendment implications in the issue. The creative appropriation of celebrity images can be an important avenue of individual expression. The importance of celebrities in society means the right of publicity has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are 'iconoclastic, irrelevant, or otherwise attempt to redefine the celebrity's image' There must be a test that takes these values into account. The court focused on what it called the transformative elements in the reproduction. If the reproduction is simply a translation of the celebrity's image, then 1A concerns minimal. But it is a different matter if the user has added other elements to the image, has significantly transformed the image into a parody, used the name in a song, lampooned (publicly criticized) the prominent person, or in some way used the celebrity's likeness as a vehicle for the expression of opinions or idea. Then the rights of free expression takes precedence over the right of the celebrity to protect their right to publicity. The court said Saderup used a literal depiction of the Stooges for commercial gain without adding significant expression beyond his trespass on the right to publicity. Held liable for violating the publicity rights of Comedy III Productions. 2015, 9th US Circuit Court rejected 1A defense to right of publicity claims in a case involving video game Madden NFL made by Electronic Arts. Every updated version of the Madden NFL video game series includes all current players for all 32 NFL teams, along with player teams, team logos, colors and uniforms. EA paid National Football Players Inc., the licensing arm of the National Football League Players Association, annual licensing fees in millions of dollars to use current players' likenesses. From 2001-9, however, the annual version of Madden NFL also included popular 'historic teams' EA didn't obtain a license to use the likenesses of the former players of these teams. Though the players on the historic teams weren't identified by name or photograph, each was described by his position, years in the NFL, height, weight, skin tone, and relative skill level in different aspects of the sport. Some of the former players on these teams sued Electronic Arts under CA statutory and common law. EA claimed its use of the former players' likeness was protected under the transformative use defense formulated by the California Supreme Court in Comedy III Productions (Comedy III Productions, Inc. v. Gary Saderup, Inc.). 9th Circuit, however, ruled the video game wasn't transformative. "Madden NFL replicates players' physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life - playing football for an NFL team. Neither the individual players' likenesses nor the graphics and other background content are transformed" 9th Circuit remanded the case to determine if players' likenesses were used in the game. 2018, district court ruled it was a triable issue of fact given the evidence Electronic Arts promoted the game by highlighting the ability of consumers to recreate actual players and teams and the game gave users the ability to name the avatars using their real-life counterparts' names. Box: Bobby Brown sues over Whitney Houston documentary 'Whitney: Can I Be Me?' 2019, Brown recording artist and former husband, filed suit against producers and distributors of documentary. Brown claimed the depiction of him violated his right of publicity under California common law and California statutory law. Also brought suit on behalf of the estate f his and Houston's deceased child, under Georgia's common law right of publicity. Showtime used footage from a reality show that portrayed both Bobby and his daughter, without either individual's consent. The defendants in the case moved to dismiss, arguing the documentary was protected under 1A. The court agreed and dismissed Bobby's California common law claim because the documentary was an expressed work (than a commercial advertisement) and a report on a matter of public interest. The court dismissed his statutory claim for the same reasons, California law provides for a public interest defense. Dismissed claim filed on behalf of estate, holding documentary was 'newsworthy' under Georgia law. 6th US Circuit Court citing both the Cardtoons v. Major League Baseball Players Association (parody trading cards case) and the Saderup decisions, ruled artist Rick Rush didn't violate Woods' right to publicity when he painted a picture of the golfer commemorating his 1997 Master's golf tournament victory. The picture featured Woods in the foreground and six other golfing greats in the background. Rush produced 250 limited edition serigraphs, sold for $700 each, and 5k smaller lithographs a $15. Sued by ETW Corporation, which holds exclusive marketing rights to Woods, for trademark infringement and violation of the golfer's right to publicity. The court held a person's image or likeness cannot function as a trademark. As for the right to publicity, the court said Rush's work was creative and transformative, and this made it worthy of 1A protection. The substantial creative content in the work outweighed any adverse effect on ETW's market. 2018, Sivero, actor known for portrayal of mafia characters, sued Fox over episode of Simpsons featuring character resembling his character from Goodfellas. On appeal, California Court of Appeals ruled use of Sivero's likeness was transformative and protected by 1A. Box: College football video games - former players successfully sued Electronic Arts for violating their right of publicity Electronic Arts once produced a video game series called "NCAA Football" Games popular for their realism and detail, including use of more than 100 'virtual teams' that used real college's names, uniforms, fight songs, and mascots. The virtual players closely resembled real-life players and shared their vital and biographical information. Former Rutgers quarterback Hart sued EA alleging the use of his likeness and biographical info in NCAA Football violated his right of publicity. EA countered video games are a form of speech protected by the 1A and NCAA Football series is artistic expression. 2013, 3rd US Circuit Court ruled in Hart v. Electronic Arts the transformative use test developed in the Three Stooges case of Saderup was the proper test to balance Hart's right of publicity interest against EA's interest in freedom of expression. In explaining this test, appellate court noted a transformative use alters the meaning behind the use of a celebrity's likeness perhaps by lampooning, adding social commentary, or placing the celebrity in a fanciful or imaginative setting. Applying the transformative use test, court wrote the issue was whether Hart's identity was sufficiently transformed in the video games. Not only his physical likeness but biographical data. Hart's avatar closely resembled the genuine article. Two shared similar hair color, hair styles, accessories, biological information. Next, court examined critical factor - the context in which his identity was used - to determine if the use was transformative. Ruling for Hart, court wrote 'digital Ryan Hart does what the actual Ryan Hart did while at Rutgers.' 9th Circuit reached similar conclusion in 2013 in favor of another former player in Keller v. Electronic Arts. 2013, shortly after both rulings against it, EA announced it would stop producing the NCAA Football video game series. 2014, submitted for judicial approval $40 million settlement with class-action plaintiffs in both Hart and Keller, along with third case involving UCLA basketball player O'Bannon. Saderup case - development of transformative use test for balancing right of publicity interests against artistic freedom of expression concerns Important contrary ruling involving a celebrity since the Saderup case was a decision in 2006 by Missouri Court of Appeals upholding $15 million verdict against comic book artist Todd McFarlane. McFarlane created a Spawn comic book character named Twistelli in 1992. McFarlane changed the name of the character to Twist and later told fans the character was modeled after NHL player Tony Twist. Twist sued for appropriation. After nearly 10 years of litigation, the appellate court rejected free speech arguments and adopted what it called a 'predominant-use' test. Speech with a predominant artistic purpose is protected, while speech with a predominant commercial purpose isn't. This is a highly subjective test never been used by another court. Burden falls on the judge to decide what is art and what is commerce. McFarlane argued when he first used Twist's name, he was a relatively unknown player from Canada, and therefore use of the name had no commercial benefit. The court disagreed. It was enough McFarlane intended to create the impression the hockey player was associated with the comic book, court said. Similar issues of transformative use and parody arise in copyright cases. The transformative use test fashioned in Saderup is largely borrowed from fair use considerations in copyright law. 7th Circuit Court in 2012 in Brownmark Films v. Comedy Partners considered whether a South Park parody of a real-world viral video called 'What What (***********)' violated the copyright interests of the owner of that video. AS the appellate court wrote, the South Park version re-creates a large portion of the original version, using the same angles, framing, dance moves and visual elements. However, the South Park version stars Butters, a naïve 9 year old, in a variety of costumes drawing attention to his innocence: at various points he is dressed as a teddy bear, an astronaut and a daisy. In ruling in favor of South Park, the court noted the underlying purpose of the South Park version of the video was to comment on and critique the social phenomenon that is the viral video. The court added the south Park video imitates viral video creation while lampooning one particularly well-known example of such a video and that this kind of parodic use has obvious transformative value. Box: Transformative use in video games A number of individuals have sued over fictional characters from video games. Former Eagles player and wrestler Hamilton filed suit against makers of 'Gears of War' video game claiming the defendants violated his right of publicity in its creation of character Cole. Hamilton argued the character was his likeness because the video game character plays for a fictional sports team called the Eagles, wears similar outfits to those worn by Hamilton as a pro wrestler and football player and looks similar to Hamilton (according to Hamilton). 3rd US Circuit ruled in favor of defendants based on a 1A defense. The court ruled the video game would be protected even if the Cole character could be identified as Hamilton - even if it was actually based off of and identified as Hamilton, the defendants' use of his likeness was protected by the 1A under the transformative use test. Third Circuit wrote the defendants' use was transformative because of the biographical differences between the two, the differences between their costumes and personalities, and the fact Cole - a soldier fighting humanoids on a fictional planet - appeared in a setting very different from the one Hamilton achieved fame - a professional football player and wrestler. 2020, saxophone player Pellegrino sued video game developer Epic Games Inc. alleging its use of the Pellegrino's signature dance move in the video game Fortnite as an emote gave rise to both statutory and common law right of publicity claims. Players can use dance moves during game play. Pellegrino argued the 'Phone it In' dance was inextricably linked to him and Epic was copying the dance to profit from Pellegrino's fame. Epic moved to dismiss the claims under the 1A. Using the transformative use test adopted by the 3rd Circuit Court, a federal district court granted Epic's motion. The court held avatars in the game didn't share Pellegrino's identity because they didn't share his appearance or biographical information, and the 'battle context' in which avatars performed the signature dance move was different from the performance context in which Pellegrino performed the move in real life. Appropriation suits involving video games will continue to be an issue going forward.

Restrictive (Gag) Orders to Control Publicity Judges have been trying for many years to compensate for p... p... p... using the remedies outlined. Some jurists and lawyers feel these schemes are b... o...-of-d...! The mass media, especially cable TV channels and Internet blogs and other sites, have become far more u... in past 20 years. It costs the state ... m... to try a defendant when there is a change of venue or when an extensive voir dire is needed. These remedies don't always w...! There is a better solution to this problem: The court should control the k... and a... of i... that is p... or b... about the case! If this is done, won't be necessary later on to compensate for any p... p...! Sheppard v. Maxwell (1966) -Decision...? The Supreme Court gave trial judges guidance in adopting ways to l... the p.../b... of pr... i... in decision involving one of the most highly publicized criminal trials of the 20th: the prosecution of Dr. Sam Sheppard for the murder of his pregnant wife, Marilyn Mrs. Sheppard was killed in 1954. Her husband, Sam, claimed she was bludgeoned to death by an intruder who attacked her in her bedroom as she slept. From the very beginning of the investigation, local police thought Sheppard was the killer. The case caught the fancy of the nation's press and was front-page news in all parts of the country. Cleveland newspapers demanded in front page headlines Sheppard be charged and jailed. After 3 weeks of i... p..., Sheppard was arrested and charged with murder. P... increased during the p... e... and t..., and few were surprised when he was c...! 12 years later, after several appeals had been denied, the U.S. Supreme Court ... Sheppard's c..., ruling he had been d... a f... t... because of p... and t... p... about the case The Supreme Court was critical of the p... c... of the case, noting the bedlam both b... and d... the trial. But Justice Clark's sharpest criticism was aimed at the t... ... for allowing things to get out of hand! The t... ... and other officers of the courts should have done more to c... the use of the c... by the p...; to c... the r... of i... to the p... by lawyers and police officers and to even proscribe ex... s... by lawyers, witnesses or other trial participants that divulged p... matters! The Supreme Court made it quite clear it would hold the t... ... responsible for ensuring the ...'s rights were not jeopardized by p... p... p...! What the high court suggested (not directly) was judges used c... o... (r... o...) to control the b... of p... in the t...! Limit ... they can s..., ... they can s... it and to ... they can s...! If no p... information is given to reporters, it cannot be published/broadcast! And this will go a long way in protecting the accused The American Bar Association made similar proposal in 1968 Within short time, r... o... became popular way for judges to control the a... and k... of p... about a pending criminal trial! But the judges went a step further than the high court proposed in 1966, some orders were aimed not only at p... in the ... but the ... as well! Some courts issued r... o... (a type of p... r... many journalists call 'gag' orders) to the ..., forbidding the publication/broadcast of s... k... of ..., or even barring journalists from c... on some aspects of a pending trial. This latter kind of order raised troubling ... ... questions, however the orders were structured or called, they amounted to the baldest form of p... c...! Two distinct categories of restrictive orders 1. Orders aimed directly at the ..., limiting what can be p... or b... 2. Orders aimed directly at the p... in the ..., limiting what they can tell the p... and r... about pending legal matters 1. Restrictive (Gag) Orders Aimed at the Press There is no such thing as a t... restrictive order; one of the virtues seen in them by judges. Each order can be fashioned to f... the c... at hand! Often comprehensive Orders aimed at the press usually limit the press coverage of c... s... d... about a case; like a defendant's confession or prior criminal record Orders aimed at p... in the ... are usually much b...; forbidding comments by a..., w..., and others about a... aspect of the case! Nebraska Press Association v. Stuart (1976) Derived from State v. Simants in 1975, Nebraska Supreme Court Another sensational murder case, one that would bring the issue of p... p... and r.../g... o... before the Supreme Court! Simants was arrested and charged in Nebraska with the murder of the Henry Kellie family. Like the Sheppard case, the arrest of Simants caught the eye of the n... n... m..., and local judge Stuart had his hands full with scores of reporters. Stuart responded by issuing a ... ... barring the p... or b... of a wide range of information that he said would be p... to Simants. The ... was later modified by the Nebraska Supreme Court to prohibit only the reporting of the existence and nature of any c... or ad... Simants might have made to police or any third party and any other information "st... imp..." of the accused. The order was to stand in effect until a ... was chosen The press in Nebraska appealed the publication ban to the U.S. Supreme Court and the high court ruled Judge Stuart's order was an ... p... r... on the press! ... ... members of the Supreme Court agreed Stuart's c... o... was a violation of the ... ... But is such a r... o... aimed at the press a violation of the ... ... in every case? THIS is where the high court split! Four justices (Stewart, Brennan, Marshall, Stevens) said this kind of r... o... would ... be permissible! Four others (Burger, Blackmun, Rehnquist, Powell) said they ... permissible in e... c... The ninth justice (White) said there was no need in this case to decide whether this kind of r... o... might be permissible in e... c... but concurred with Chief Justice Burger's opinions that became the court's opinion Burger wrote a r... o... levied against the press m... be permissible where the "g... of e..., d... by its im..., justifies such an invasion of free speech and is necessary to a... the d..." Outlined three-part test to evaluate whether a r... o... that limited the press would pass ... ... scrutiny! An order can be c... justified only if these conditions are met: 1. I... and per... p... concerning the case is certain 2. No other a... m... might mitigate the effects of the p... p... 3. The r... o... will in fact ef... p... p... material from reaching potential ... Nebraska Press Association Test (for r... o... aimed at the ...!) 1. There must be ... and ... ... about the case 2. No other ... ... might mitigate the effects of the ... ... 3. The ... ... will in fact ... ... p... p... from reaching potential ... The test makes p... r... an e..., not the r...! There must be a c... and p... d... to the defendant's rights before such a r... o... can be c... permitted! In Simants' case while there was a heavy publicity about the matter, no evidence Judge Stuart had considered the efficacy of o... r... to compensate for this publicity. The small community was filled with r... about Simants and what he had told the police, making Burger doubtful a r... o... would keep p... information out of public hands anyways The Supreme Court didn't consider whether r... o... aimed at t... p... would be u...! That issue wasn't raised in the trial, but it was and still is assumed courts have much b... p... to limit what attorneys, police and other t... p... can say about a case out of court United States Judicial Conference (Guidelines on Fair Trial/Free Press) specifically recommends federal courts adopt rules that limit p... d... of criminal cases by attorneys and court personnel and suggests courts issue s... r... in s... crime cases to bar e... c... by all trial participants! But in light of the ruling in NPA v. Stuart, guidelines state: "No rule of court or j... o... should be promulgated by a U.S. district court which would prohibit representatives of the n... ... from b... or p... any information int heir possession relating to a crime" In 1978-9, the Supreme Court issued opinions in cases that r... the rule from Nebraska Press Association; restrictions on what the ... may ... are to be tolerated ONLY in v... r... c...! Landmark Communications, Inc. v. Virginia (1978) [case name not in book, no need to remember it] -High court prohibited VA from punishing Virginian Pilot newspaper for publishing an accurate story regarding the confidential proceedings of a state judicial review commission -VA statue authorized the commission to hear complaints of a judge's disability/misconduct, and because of the s... nature of hearings, VA law ... the proceedings to public/press. The state argued c... was necessary to encourage the filing of complaints + testimony of witnesses, to protect the judge from injury from publication of unwarranted or unexamined charges and to maintain confidence in the judiciary that might be undermined by the publication of groundless charges! -Supreme Court acknowledged the d... of c..., but nevertheless ruled against the ...! Chief Justice Burger, writing for a ... court, "The publication VA seeks to punish under its statute lies near the core of the ... ..., and state's interests advanced by imposition of criminal sanctions are in... to justify the a... and p... en... on f... of s... and of the ...!" The court did acknowledge the state commission could meet in s... and its reports and materials be kept c...! BUT while the press has no right to g... a... to such information, once it p... the information, it cannot be p... for its p...! The court followed the Nebraska Press Association rule limiting r... placed on the ...'s right to ... Smith v. Daily Mail Publishing, Co. (1979) [case name not in book, no need to remember it] -A West Virginia statute was declared ..., made it a crime for a newspaper to publish, without the w... a... of the ... c..., the name of a ... charged as a ... offender! -Chief Justice Burger wrote opinion for court, once the press has l... o... t... information, it may p... this information! -Two Charleston newspapers published the name of a 14-year-old who was arrested for the shooting death of another minor. Reporters for newspapers got name from people who had witnessed the shooting "If the information is l... o..., the state may not p... its publication EXCEPT WHEN NECESSARY to further an interest m... s... than is present here" The number of r... o... aimed at the press has d... s... during the past three decades as a result of these three rulings! Most trial judges won't even bother to issue an ... when it is requested. Examples of g... o... on the ...are much rarer than attempts to c... j... p... and s... j... r... Example An interesting motion was filed in federal district court, sought to prevent p... a... that might taint a j... p... in a c... case! -Claims that Tylenol caused liver damage. The plaintiffs sought to prevent any m..., a... or p... ca... before a trial could take place, arguing such a... could taint the j... p.... -The makers of Tylenol argued while they didn't intend to engage in any a... designed to influence potential ..., they planned to continue n... a... and m... Though the judge called the request "somewhat unprecedented" he acknowledged that p... p... from a... could affect the fairness of a c... trial Though the order was not aimed at the ..., the judge applied the Nebraska Press Association test and ... the motion, noting o... m... were available to mitigate ... bias When a t... court does issue an order, it is typically o... on ...! Example -OH Supreme Court o... a restrictive order that permitted the press to attend a trial but barred it from reporting anything about it -A woman and her boyfriend, charged with involuntary manslaughter and child endangering, were to have separate trials. The trial court determined press reports about the woman's trial, which was to be held ..., could taint the jury pool for the ... trial The OH Supreme Court noted a restrictive order couldn't be considered unless the circumstances were imperative. While the court found the record supported the contention of the man's right to a fair trial was in jeopardy, it ruled the trial court erred in issuing the restrictive order because it didn't hold an e... h... to determine the extent of the danger. Instead, the judge based his decision on a sp... as... that o... m... wouldn't mitigate publicity -The judge only considered a change of venue to a large neighboring county but ruled out this a... because of the travel costs included. The OH Supreme Court said "avoiding additional travel costs was not enough to justify a p... r... on the press" Example AZ Court of Appeals issued a unanimous opinion re... this approach in the case of a man who was charged in the death of a 10-year-old. The lead prosecutor in that case appeared in a different case as the alleged victim of stalking. The two trials took place at the same time in neighboring courthouses -After the Arizona Republic requested a still camera be placed in the courtroom of the murder trial, CP argued that media coverage should be prohibited, claiming it might affect the stalking trial. During a hearing on the Arizona Republic's camera request, Arizona Superior Court Judge issued an order barring the media from publishing CP's name or likeness until the conclusion of the stalking trial Citing the Nebraska Press Association test, the Arizona Court of Appeals ruled the restriction was ... The court concluded the alleged harm that might be caused by media coverage was too s..., and the trial court had failed to consider less r... a.... The ban on publishing CP's name or likeness would be ineffective because there was already a great deal of interest in the case Are gag orders against the press EVER affirmed by ... courts? If there is g... r..., such an order may be s...! Example -During the pretrial proceedings in the Kobe Bryant rape trial, an electronic transcript of a nonpublic hearing that would have revealed the rape victim's identity was accidentally disseminated to seven media outlets -The trial court issued an order barring the press from disseminating the information contained in this document. The CO Supreme Court ... the trial court's order. While the court noted the U.S. Supreme Court ruling on p... the publication of rape victims' identities, it also noted Justice Marshall's statement that the state courts were not completely without the power to s... the identity of the victim of a sexual assault if such s... were needed to protect an i... of the ... o..., in this case the mandate of the CO rape shield statute

Restrictive (Gag) Orders to Control Publicity Judges have been trying for many years to compensate for prejudicial pretrial publicity using the remedies outlined. Some jurists and lawyers feel these schemes are badly-out-of-date. The mass media - especially cable TV channels and Internet blogs and other sites - have become far more ubiquitous (widespread) in the past two decades. It costs the state more money to try a defendant when there is a change of venue or when an extensive voir dire is needed. These remedies don't always work, it is contended. There is a better solution to the problem: The court should control the kind and amount of information that is published or broadcast about the case. If this is done, it won't be necessary later on to compensate for any prejudicial publicity. S v. M (8-1) (1966) The Supreme Court gave trial judges guidance in adopting ways to limit the publication and broadcast of prejudicial information in a 1966 decision involving one of the most highly publicized criminal trials of the 20th century: the prosecution of Dr. Sam Sheppard for the murder of his pregnant wife, Marilyn. Mrs. Sheppard was killed early in the morning on 07/04/1954. Her husband, Sam, claimed she was bludgeoned to death by an intruder who attacked her in her bedroom as she slept. From the very beginning of the investigation, local police thought Sheppard was the killer. The case, which had all the elements of a good murder mystery, caught the fancy of the nation's press and was front-page news in all parts of the country. Cleveland newspapers, like the Cleveland Press, demanded in front page headlines Sheppard be charged and jailed. After 3 weeks of intense publicity, Sheppard was arrested and charged with murder. Publicity increased during the preliminary examination and trial, and few were surprised when the wealthy osteopath was convicted. 12 years later, after several appeals had been denied, the U.S. Supreme Court reversed Sam Sheppard's conviction, ruling he had been denied a fair trial because of pretrial and trial publicity about the case. The Supreme Court was critical of the press coverage of the case, noting that bedlam (uproar/confusion) often resigned both before and during the trial. And while Justice Clark did not excuse the journalists for their excesses, his sharpest criticism was aimed at the trial judge for allowing things to get so far out of hand. Clark said Judge Blythin and the other officers of the courts should have done more to control the use of the courtroom by the press; to control the release of information to the press by lawyers and police officers and to even proscribe (forbid) extrajudicial (out-of-courtroom) statements by lawyers, witnesses or other trial participants that divulged prejudicial matters. The Supreme Court made it quite clear it would hold the trial judge responsible for ensuring the defendant's rights were not jeopardized by prejudicial press publicity. What the high court suggested (in Sheppard v. Maxwell), albeit obliquely (not in a direct way), was judges use court orders (called restrictive orders) to control the behavior of the participants in the trial. Limit what they can say, when they can say it and to whom they can speak. If no prejudicial information is given to reporters, it cannot be published or broadcast! And that will go a long way in protecting the rights of the accused. The American Bar Association made a similar proposal two years later. Within a short time, restrictive orders became a popular way for judges to control the amount and kind of publicity about a pending criminal trial. But the judges went a step further than the high court proposed in 1966. Some orders were aimed not only at the participants in the trial but at the press as well. Some courts issued restrictive orders (a type of prior restraint many journalists call gag orders) to the press, forbidding the publication or broadcast of specific kinds of information, or even barring journalists from commenting on some aspects of a pending trial. This latter kind of order raised distinct and troubling 1A questions, for however the orders were structured, or whatever they were called, they amounted to the baldest form of prior censorship. Remember restrictive orders fall into two distinct categories!: 1. Orders that are aimed directly at the press, limiting what can be published or broadcast 2. Orders that are aimed directly at the participants in the trial, limiting what they can tell the public and reporters about the pending legal matters 1. Restrictive (Gag) Orders Aimed at the Press There is no such thing as a typical restrictive order; that is one of the virtues seen in them by judges. Each order can be fashioned to fit the case at hand! They are often quite comprehensive. Orders aimed at the press usually limit the press coverage of certain specific details about a case; a defendant's confession or prior criminal record, for example. Orders aimed at participants in a trial are usually much broader, forbidding comments by attorneys, witnesses and others about any aspect of the case. In 1975, another sensational murder case began, one that would ultimately bring the issue of pretrial publicity and gag orders before the Supreme Court. Erwin Simants was arrested and charged in North Platte, Nebraska, with the murder of all six members of the Henry Kellie family. Like the Sheppard case, the arrest of Simants caught the eye of the national news media, and local judge Stuart had his hands full with scores of reporters from around the state and the nation. Stuart responded by issuing a restrictive order barring the publication or broadcast of a wide range of information that he said would be prejudicial to Simants. The order was later modified by the Nebraska Supreme Court to prohibit only the reporting of the existence and nature of any confessions or admissions Simants might have made to police or any third party and any other information "strongly implicative" of the accused. The order was to stand in effect until a jury was chosen. The press in the state appealed the publication ban to the U.S. Supreme Court and in 06/1976, the high court ruled Judge Stuart's order was an unconstitutional prior restraint on the press! All nine members of the Supreme Court agreed Judge Stuart's court order was a violation of the 1A. But is such a restrictive order aimed at the press a violation of the 1A in every case? This is where the high court split. Four justices (Stewart, Brennan, Marshall, John Paul Stevens) said this kind of restrictive order would never be permissible. Four other justices (Burger, Blackmun, Rehnquist, Powell) said such orders may be permissible in extraordinary circumstances. And the ninth justice (White) said there was really no need in this case to decide whether this kind of restrictive order might be permissible in extreme cases but concurred with Chief Justice Burger's opinion that became the court's opinion. The chief justice wrote a restrictive order levied against the press might be permissible where the "gravity of evil, discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid the danger" Burger then outlined a three-part test to evaluate whether a restrictive order that limited the press would pass 1A scrutiny. He said such an order could be constitutionally justified only if these conditions are met: 1. Intense and pervasive publicity concerning the case is certain 2. No other alternative measure might mitigate the effects of the pretrial publicity 3. The restrictive order will in fact effectively prevent prejudicial material from reaching potential jurors Nebraska Press Association Test for Restrictive Orders Aimed at the Press (Nebraska Press Association v. Stuart) 1. There must be intense and pervasive publicity about the case 2. No other alternative measure might mitigate the effects of the pretrial publicity 3. The restrictive order will in fact effectively prevent prejudicial publicity from reaching potential jurors Prior restraint is the EXCEPTION, not the rule, Chief Justice Burger wrote. These must be a clear and present danger to the defendant's rights before such a restrictive order can be constitutionally permitted, he said. In Simants' case, Burger said, while there was heavy publicity about the matter, there was no evidence Judge Stuart had considered the efficacy of other remedies to compensate for this publicity. Also, the small community was filled with rumors about Simants and what he had told the police. Burger expressed serios doubts whether the restrictive order would have in fact kept prejudicial information out of public hands. The Supreme Court did not consider whether restrictive orders aimed only at trial participants would be unconstitutional!!! That issue was not raised in the trial, but it was and still is assumed courts have much broader power to limit what attorneys, police and other trial participants can say about a case out of court. "Guidelines on Fair Trial/Free Press" issued by the United States Judicial Conference, for example, specifically recommends that federal courts adopt rules that limit public discussion of criminal cases by attorneys and court personnel and suggests that courts issue special rules in sensational crime cases to bar extrajudicial (out-of-courtroom) comments by all trial participants. But, in light of the ruling in Nebraska Press Association v. Stuart, the guidelines state: "No rule of court or judicial order should be promulgated (spread/circulated) by a U.S. district court which would prohibit representatives of the news media from broadcasting or publishing any information in their possession relating to a criminal case." In both 1978 and 1979, the Supreme Court issued opinions in cases that had the effect of reinforcing the rule from the Nebraska Press Association; restrictions on what the press may publish are to be tolerated ONLY IN VERY RARE CIRCUMSTANCES. 1978, high court prohibited the state of VA from punishing the Virginian Pilot newspaper for publishing an accurate story regarding the confidential proceedings of a state judicial review commission. A VA state statute authorized the commission to hear complaints of a judge's disability or misconduct, and because of the sensitive nature of such hearings, the VA law closed the proceedings to the public and the press. The state argued that confidentiality was necessary to encourage the filing of complaints and the testimony of witnesses, to protect the judge from the injury that might result from the publication of unwarranted or unexamined charges and to maintain confidence in the judiciary that might be undermined by the publication of groundless charges. Though acknowledging the desirability of confidentiality, the Supreme Court nevertheless ruled against the state. Chief Justice Burger, writing for unanimous court, stated "the publication VA seeks to punish under its statute lies near the core of the 1A, and the Commonwealth's interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press" The court did acknowledge the state commission could certainly meet in secret and its reports and materials could be kept confidential. But while the press has no right to gain access to such information, once it possesses the information, it cannot be punished for its publication. The court followed the Nebraska Press Association rule limiting restraints placed on the press's right to publish. 1979, the high court declared unconstitutional a WV statute that made it a crime for a newspaper to publish, without the written approval of the juvenile court, the name of a youth charged as a juvenile offender. Again Chief Justice Burger wrote the opinion for the court and stressed the fact once the press has legally obtained truthful information, it may publish this information! Two Charleston, WV newspapers published the name of a 14-year-old boy who was arrested for the shooting death of a 15-year-old student. Reporters for the newspapers got the name from people who had witnessed the shooting. "If the information is lawfully obtained, the state may not punish its publication EXCEPT when necessary to further an interest more substantial than is present here," Chief Justice wrote. The number of restrictive orders aimed at the press has dwindled substantially during the past three decades as a result of these three rulings! Most trial judges won't even bother to issue an order when it is requested. Examples of gag orders on the press are much rarer than attempts to close judicial proceedings and seal judicial records. An interesting motion that was filed in federal district court in 2016 sought to prevent prejudicial advertising that might taint a jury pool in a civil case involving claims that Tylenol caused liver damage. The plaintiffs, suing the makers of Tylenol, sought to prevent any marketing, advertising or publicity campaigns before a trial could take place, arguing such advertising could taint the jury pool. The makers of Tylenol argued while they didn't intend to engage in any advertising designed to influence potential jurors, they planned to continue normal advertising and marketing. Though the judge called the request "somewhat unprecedented" he acknowledged that pretrial publicity from advertising could affect the fairness of a civil trial. Though the order was not aimed at the press, the judge applied the Nebraska Press Association test and denied the motion, noting other means were available to mitigate juror bias When a trial court does issue such an order, it is typically overturned on appeal. Example: Ohio Supreme Court overturned a restrictive order in 2010 that permitted the press to attend a trial but barred it from reporting anything about it. A woman and her boyfriend, charged with involuntary manslaughter and child endangering, were to have separate trials. The trial court determined press reporters about the woman's trial, which was to be held first, could taint the jury pool for the second trial. The OH Supreme Court noted a restrictive order couldn't even be considered unless the circumstances were "imperative" (of vital importance, crucial). While the court found the record supported the contention of the man's right to a fair trial was in jeopardy, it ruled the trial court erred in issuing the restrictive order because it didn't hold an evidentiary hearing to determine the extent of the danger. Instead, the judge based his decision on a speculative assertion that other measures wouldn't mitigate publicity. The judge only considered a change of venue to a large neighboring county but ruled out this alternative because of the travel costs included. The OH Supreme Court said "avoiding additional travel costs was not enough to justify a prior restraint on the press" Example: Arizona Court of Appeals (2018) issued a unanimous opinion reaffirming this approach in the case of a man who was charged in the death of a 10-year-old girl. The lead prosecutor in that case, Gallagher, appeared in a different case as the alleged victim of stalking by Heitzmann. The two trials took place at the same time in neighboring courthouses in Phoenix. After the Arizona Republic requested a still camera be placed in the courtroom of the murder trial, Gallagher argued that media coverage should be prohibited, claiming it might affect the stalking trial. During a hearing on the Arizona Republic's camera request, Arizona Superior Court Judge Otis issued an order barring the media from publishing Gallagher's name or likeness until the conclusion of the stalking trial. Citing the Nebraska Press Association test, the Arizona Court of Appeals ruled the restriction was unconstitutional. The court concluded the alleged harm that might be caused by media coverage was too speculative, and the trial court had failed to consider less restrictive alternatives. In addition, the court wrote the ban on publishing Gallagher's name or likeness ultimately would be ineffective because there was already a great deal of interest in the case. Are gag orders against the press ever affirmed by appellate courts? If there is good reason, such an order may be sustained! Example: During the pretrial proceedings in the Kobe Bryant rape trial, an electronic transcript of an in-camera (nonpublic) hearing that would have revealed the rape victim's identity was accidentally disseminated to seven media outlets. The trial court issued an order barring the press from disseminating the information contained in this document. The CO Supreme Court upheld the trial court's order. While the court noted the U.S. Supreme Court ruling on permitting the publication of rape victims' identities, it also noted Justice Marshall's statement that the state courts were not completely without the power to shield the identity of the victim of a sexual assault if such shielding were needed to protect an interest of the highest order, in this case the mandate of the CO rape shield statute. The rape charges were subsequently dropped

Variable Obscenity Ginsberg v. New York (1968) -States can maintain one ... of obscenity for ... and another for ... -Enables ...-... ... of sexually explicit material if the purpose is preventing ...'s ... -Regulations cannot in any way interfere with the flow of ... ... material to ... Child Pornography -Not ... ..., so no need to apply ... ... -A ... image of a child doesn't always constitute child pornography -Image must be "..." to qualify Dost Factors 1. ... ... of the depiction is on the child's ... or ... area 2. ... for the image is ... ... (e.g., place or pose) 3. Child is depicted in an ... ... or ... ..., according to the child's ... 4. Child is ... or ... ... or ... 5. Image suggests sexual ... or ... to engage in sexual activity 6. Image is intended to elicit a ... ... from ... -Not all factors need to be present but are considered "..." using a "... of the ..." approach Sexting -... who take, possess and/or distribute sexual photos or videos of ... or other ... are ... ... from ... ... statutes! -Starting in 2010, when "sexting" became a widespread issue, states started adopting legislation designed to ... charges from ... to ... or less if: a. ... b. ...-... ...

-Definition, adults, juveniles -Content-based regulations, children's exposure -Constitutionally protected, adults -Constitutionally protected, Miller test -Nude -Lascivious 1. Focal point, genitalia or pubic area 2. Setting, sexually suggestive 3. Unnatural pose, inappropriate attire, age 4. Fully or partially clothed or nude 5. Coyness, willingness 6. Sexual response, viewer "Holistically" "Totality of the Circumstances" Minors, themselves, other minors, not exempt, child pornography Reduce, felony, misdemeanor: a. Consensual b. First-time offense

Regulation of Nonobscene Erotic Material Attacks on the Arts and Popular Culture -Beyond sexually explicit magazines, videos and Web sites, other forms of American popular culture are often challenged both in ... and by ... g... Example "Cuties" movie, released on Netflix in 2020 -"Cuties" tells story of an 11-year-old French-Senegalese girl who rebels against her conservative family's traditions and joins a dance group of young girls known as "The Cuties." Critics alleged the movie - and the way Netflix ... it - sexualized children, with girls sometimes performing rather sexually suggestive dance moves -A TX grand jury indicted Netflix on charges of violating a state child pornography law. The indictment accused Netflix of promoting "visual material which depicts the l... ... of the ... or ... ... of a c... or p... ... ... who was younger than ... at the time the material was created" -TX law includes a clause that tracks the ... element of the Miller test, which says for the material to be criminalized, it must lack "serious ..., ..., ... or ... ..." That provision makes a conviction against Netflix for distributing the movie unlikely given its serious ... and ... ... -Netflix deemed the charges "without merit" In defending the movie, Netflix said in a statement that "Cuties" is a "social commentary against the sexualization of young children. A powerful story about the pressure young girls face on social media and from society more generally growing up" -Prosecution failed Example -Rap group 2 Live Crew's recording declared obscene by judge in 1990 -Cincinnati Contemporary Arts Center unsuccessfully prosecuted for obscenity that same year for displaying photographs by Mapplethorpe -New York Mayor Giuliani withheld funds already appropriated to Brooklyn Museum after it opened a temporary exhibit the mayor called "sick" -National Endowment for the Arts is required under federal law to take into consideration general standards of ... before doling money to artists -Late comedian Lenny Bruce was twice convicted of obscenity in 1964, showing how ... ... s... (phrase used in Miller obscenity test) change, comedians today often use the same words as Bruce but with little fear of ... p... -Late musician Jim Morrison's post-humous pardon for "l and ... behavior in public" by exposing his private parts and simulating m... and o... copulation (convicted of two misdemeanor counts)

Attacks on the Arts and Popular Culture Beyond sexually explicit magazines, videos and Web sites, other forms of American popular culture are often challenged, both in court and by advocacy groups, for sexual content. Example: the movie "Cuties" sparked a firestorm when it was released on Netflix in 2020. Winner of a director's award at the Sundance Film Festival, "Cuties" tells story of an 11-year-old French-Senegalese girl who rebels against her conservative family's traditions and joins a dance group of young girls known as "The Cuties." Critics alleged the move - and the way Netflix initially promoted it - sexualized children, with girls sometimes performing rather sexually suggestive dance moves. The hashtag Cancel Netflix trended on Twitter, and several members of Congress called for Netflix to remove the movie from its platform. Then in October 2020, a TX grand jury indicted Netflix on charges of violating a state child pornography law. The indictment accused Netflix of promoting "visual material which depicts the lewd exhibition of the genitals or pubic area of a clothed or partially clothed child who was younger than 18 at the time the visual material was created." Importantly, the TX law includes a clause that tracks the third element of the Miller test, which says for the material to be criminalized, it must lack "serious literary, artistic, political or scientific value" That provision makes a conviction against Netflix for distributing the movie highly unlikely given its serious literary and artistic value. Netflix deemed the charges "without merit" In defending the movie, Netflix said in a statement that "Cuties" is a "social commentary against the sexualization of young children. It's an award-winning film and a powerful story about the pressure young girls face on social media and from society more generally growing up - and we'd encourage anyone who cares about these important issues to watch the movie." While the prosecution of Netflix was certainly doomed to fail, politics often motivates such legal efforts, bolstering the reputations of local district attorneys as family-friendly officials Example: Rap group 2 Live Crew's "As Nasty As They Wanna Be" recording was declared obscene by a judge in 1990, and the Cincinnati Contemporary Arts Center was unsuccessfully prosecuted for obscenity that same year for a display of photographs by Robert Mapplethorpe. In 1999, NYC Mayor Rudy Giuliani withheld funds already appropriated to the Brooklyn Museum after it opened a temporary exhibit the mayor called "sick" and "disgusting." And when the National Endowment for the Arts doles out money today to artists, it is required under federal law "to take into consideration general standards of decency" Proving that censorship is no laughing matter, the late comedian Lenny Bruce was twice convicted of obscenity in 1964: once for a stand-up performance in Chicago and once for a profane routine in NYC's Greenwich Village. Showing how "contemporary community standards" (phrase used in the Miller obscenity test) change, comedians today often "work blue" using the same words as Bruce but with little fear of obscenity prosecution. The 2005 movie "The Aristocrats" featuring multiple comedians telling "the dirtiest joke ever told" (it involves graphic descriptions of incest, bestiality and bodily excretions) was rented at video stores across the nation Box: Closing the doors on Jim Morrison: Florida's posthumous pardon of Mr. Mojo Risin' During March 1969 concert in Miami, lead singer of the Doors, Jim Morrison, was arrested and charged with "lewd and lascivious behavior in public by exposing his private parts and by simulating masturbation and oral copulation" while on stage. He was convicted of two misdemeanor counts. More than 40 years later, in December 2010, the Florida Clemency Board pardoned Morrison at the request of outgoing Gov. Charlie Crist. Morrison died in 1971

Federal Open Meetings Law Government in Sunshine Act (1976) -Applies to f... b..., c... and a..., "headed by a c... body composed of ... or more individual members, a majority of whom are appointed to such position by the ... with advice and consent of the ...!" Example: FCC, FTC, SEC - federal agencies with deliberative bodies at the top -Requires b... ... to be conducted in ... [sunshine] -... of meeting required ... ... in advance -Courts have applied ... ...! [only if the ... appoints members does it apply!] Often p...-... - a lot of deliberations go on behind ... ... (... c... between members) -Emails may be received through FOIA but often there are phone calls, meetings so no open records law applies! Doesn't give us as much as we'd hope State Open Meetings Laws -... ... states have them, they differ widely -Most provide for ... ..., or ... ... Open meetings tips for reporters: 1. Ask for the ... ... for closure 2. Find out ... is asking the meeting to be closed and ... 3. Never leave a meeting ..., but don't ... being escorted out the door 4. Call your ... immediately if something is fishy 5. Use ... as well as the ... to gain access -Actions taken at meeting that was not ..., but should have been, might be ... and ... Covering Protests Common Charges: 1. ...-based offenses ... 2. ...-based ... ... ... ... Failure to ... or to ... l... o... 3. ... violations It is illegal to surreptitiously record private conversations Remember one-party vs. all-party Protections: a. ... Amendment b. ... Amendment -... and ...! c. C... ... l... -... U.S.C. ... -If officer's conduct "violates c... e... s... or c... rights of which a r... p... would have known" d. ... ... Act of ... -Restricts government from ... or ... "... materials" from someone "reasonably believed to have a purpose to ... to the ...!" Tips: C..., and put police on "notice of an intent to d..."

Government in Sunshine Act (1976) -Applies to federal boards, commissions and agencies, "headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the president with advice and consent of the Senate." -Requires business meetings to be conducted in public -Notices of meeting required one week in advance -Courts have applied strict interpretation [president] Pro-forma, closed doors, informal communications State Laws: -All 50 states have them, they differ widely -Most provide for closed meeting, or executive sessions Open meetings tips for reporters: -Ask for the legal basis for closure -Find out who is asking the meeting to be closed and why -Never leave a meeting voluntarily, but don't resist being escorted out the door -Call your editor immediately if something is fishy -Use publicity as well as the law to gain access -Actions taken at meeting that was not public, but should have been, might be null and void Covering Protests Common charges: -Location-based offenses -Trespassing -Conduct-based offenses -Disorderly conduct -Obstruction -Failure to disperse or to obey lawful orders -Wiretapping violations -Illegal to surreptitiously record private conversations -One-party consent -All-party consent Protections -First Amendment -Fourth Amendment -Search and seizure -Civil Rights lawsuits -42 U.S.C. 1983 -If officer's conduct "violates clearly established statutory or constitutional rights of which a reasonable person would have known" -Privacy Protection Act of 1980 -Restricts government from searching or seizing documentary materials from someone "reasonably believed to have a purpose to disseminate to the public" -Credentials, and put police "on notice of an intent to disseminate"

Impact on Jurors -Social science hasn't p... i...! -Supreme Court has found that the presumption of ... ... only arises in ... ... United States v. Skilling (2010) Reasons the presumption was not found in the case of Skilling: -Four years had passed -... potential ... ... -Jury didn't ... on ... charges -Jurors had to fill out lengthy questionnaire by ...'s ... Skilling Test -Factors courts should use to evaluate whether there is a ... of ... caused by p... p...: 1. Media ... with actual c... ... 2. M... and ... of media c... 3. S... and ... of the ... 4. Amount of ... elapsed between ... and ... 5. ...'s ... 6. Impact of the ... on the ... 7. Effect of publicity given to a ... or other "s... ..." type of information Impartial Jurors -Someone who is capable and willing to decide the case solely on the ... admitted into ... -Someone who can disregard their ...-... ... and k... -Someone who can set aside ...-of-... information and decide only based on ... itself . . . . . . Remember, the defendant's ... or ... is ultimately up to the ... to decide! Not your job as a crime reporter to decide the defendant's ... or ... (same blanks) Impact on Jurors -Social science hasn't ... ...Social science has yet to prove prejudicial publicity has a direct and linear effect on ... impact on a ... ...HARD to study - dynamic subject -Supreme Court has found that the ... of ... ... only arises in ... ...Supreme Court not that concerned - Skilling serves as their statement on the issue! -United States v. Skilling (2010)Former executive of Enron, energy company based in Houston, bankrupt and closed due to shady financial practices - lots of jobs lost. National story but was highly impactful in Houston (where the energy company was based). Skilling was convicted and appealed, claimed the ... was ...! a. ... ... had passed (between the committed crime and the trial - maybe if it ... happened after the crime was committed, but a lot changes in years. ... is a mitigation factor for prejudicial publicity!) b. Large ... ... ... (4 million people, high chance to find twelve who didn't have an opinion on Skilling - ... ... process accounted for prejudicial publicity) c. Jury didn't ... on ... ... (proof jury used its discretion and weighed the evidence - not acting on prior biases - if they were you would have seen either all possible sentences acquitted or convicted - had a ... verdict!) d. Jurors had to fill out lengthy questionnaire by ...'s ... (... ... - ask a series of questions for information on the jurors - weed out those with ... ... with Enron - questions probably like Did you work for Enron? What about your family/friends? Were you harmed by Enron's tanking?) The Supreme Court determined Skilling's trial was fair and the ... ... didn't affect the trial even if he did lose! The reasons are above Another example of voir dire: Police shooting case - Are you an officer? Is a member of your family or friend an officer? Cutting those in the jury who may say yes to these questions by attorneys, those who might risk skewing the jury! Skilling Test Factors courts should use to evaluate whether there is a presumption of prejudice caused by pretrial publicity (they do not all have to be present, but looking at them ...!) a. Media interference with ... ... ... -Trial going on and media starts making a ruckus, disrupting ongoing nature of the trial b. ... and ... of media ... -Most trials aren't reported by the media at all! Limited budget of news organizations and high case load. Let's say a murder is committed, picked up by local media organization (small magnitude, but still ...) let's say Nancy Grace picks it up [national cable show, now everyone in the state knows about the case], much higher ...! c. ... and ... of the ... Example: Tuscaloosa has about 100k people - small community, commit murder and town is talking about it! Impacts the ability to have a fair trial. Versus NYC and Houston, millions of people, larger ... ..., easier to have a fair ... ... and fair trial as a result d. Amount of ... elapsed between ... and ... -Skilling: 4 years (long time) Right to a speedy trial (6th Amendment), but for some cases and defendants waiting is good! Cycling in and out members of the community and making the jury pool fresh e. ...'s ... -Used at the ... level (Skilling test) - cannot tell at the ... level! Example: 5 charges possible - only convict on 2 or 3 (less likely a presumption of prejudice) VERSUS guilty or innocent on all 5 charges (more likely) f. Impact of the ... on the ... Example: Burglarize a shop downtown, impacts only the shop and shop owner but not the whole community versus an assault spree, shooting and killing across town - larger swaft of the community (scale of impact on crime is larger) g. Effect of publicity given to a ... or other "... ..." type of information -Your forensic evidence, ... (same blank) - inadmissible but reported by national or state media - could lead to enough bias in the jury needed to overthrow the ruling! Important to remember the Skilling test is being applied by ... courts (a defendant is already found guilty and they ... - looking for a biased jury after-the-fact) *Already found .../... - ... court looking over the decision The goal is Impartial Jurors Someone who is capable and willing to decide the case solely on the ... admitted into ... (even if they may have ...-of...- or ...-... ... or ...) Someone who can disregard their ...-... ... and ... Someone who can set aside ...-of-... information and decide only based on ... itself (ignoring information you may have heard and silencing your own ... and ... against people [race, gender, etc.] and acts)

uSocial science hasn't proved impact uSupreme Court has found that the presumption of juror prejudice only arises in extreme cases uUnited States v. Skilling (2010) uFour years had passed uLarge potential jury pool uJury didn't convict on all charges uJurors had to fill out lengthy questionnaire by defendant's attorneys uFactors courts should use to evaluate whether there is a presumption of prejudice caused by pretrial publicity: 1.Media interference with actual courtroom proceedings 2.Magnitude and tone of media coverage 3.Size and characteristics of the community 4.Amount of time elapsed between crime and trial 5.Jury's verdict 6.Impact of the crime on the community 7.Effect of publicity given to a confession or other "smoking gun" type of information uSomeone who is capable and willing to decide the case solely on the evidence admitted into court uSomeone who can disregard their pre-existing opinion and knowledge uSomeone who can set aside out-of-court information and decide only based on trial itself u Social science hasn't proved impact, juror, fair trial u Supreme Court has found that the presumption of juror prejudice only arises in extreme cases u United States v. Skilling (2010), jury was prejudiced u Four years had passed, immediately, time u Large potential jury pool, voir dire u Jury didn't convict on all charges, mixed u Jurors had to fill out lengthy questionnaire by defendant's attorneys, voir dire, direct experience Pretrial publicity Factors courts should use to evaluate whether there is a presumption of prejudice caused by pretrial publicity: Media interference with actual courtroom proceedings Magnitude and tone of media coverage Size and characteristics of the community Amount of time elapsed between crime and trial Jury's verdict Impact of the crime on the community Effect of publicity given to a confession or other "smoking gun" type of information Holistically Magnitude, magnitude Jury pool, jury pool Appellate, trial Appellate, appealed, guilty/convicted Someone who is capable and willing to decide the case solely on the evidence admitted into court (out-of-court, pre-existing knowledge and opinions Someone who can disregard their pre-existing opinion and knowledge Someone who can set aside out-of-court information and decide only based on trial itself, biases and prejudices

Newsroom Searches Privacy Protection Act of 1980 Limits police ... and ... powers -To obtain ... ... or ... materials, law enforcement agencies must obtain a ... (a ... ... is not enough)! A ... means going before a ... to show a lot of evidence that the journalist has they what need! ... ... or ... materials (same blanks) are materials created with the intention to ... to a w... ... Police cannot just ... these materials from you! Two exceptions: 1. If there is ... ... to believe the person possessing such materials has committed a related ... ... (... exception) If there is reason to believe you are a ... to a ... of which the ... materials (same blank) relate! Example: While documenting on video, you help move a car to get protestors onto a bridge and block traffic. Police might think you are guilty/... for trespassing or interfering with a police order and want to see the video as evidence [Could get a ... ... instead!] 2. If there is reason to believe that the immediate .../... is necessary to prevent ... or s... ... But generally law enforcement will be required to receive a ... - these are materials off your body and in the newsroom! More exceptions... S... ... may be used instead of a ... if: 3. Reason to believe that the giving of ... pursuant to gaining a ... would result in the ..., ... or ... of such materials [worried you'll ... the evidence!] 4. Such materials have not been provided in response to a c... ... directing compliance with a ..., all other l... ... have been e..., and there is reason to believe that further delay in gaining the material would threaten the i... of j... If you've received a ... to release and you resist it and the clock is ticking to try on a particular defendant, for example! Or a specific criminal act has occurred and law enforcement knows you have it REMEMBER: Law enforcement cannot just fish a newsroom to get information that might be useful - must be a t... search [EITHER: You were involved in certain ... ... OR you have material necessary to depict a certain ... ...] How to Avoid a Subpoena 1. Don't p... ... to a source unless a... n... 2. Discuss with an ... before granting ... -Need to find out will ... be behind you - access to good ... - What access to resources do you have and know if your .../... is behind you! 3. Don't talk about stories with ... information with people ... the ... (might impact your ability to claim ...) -Do not ... before or after you write a story including ... s...! Example: You tell your friends while at a bar about a story you're working on involving a ... s... (same blank). Someone else might overhear you or your friends might further spread the information/rumor This could impact your ability to claim ...'s ...! "We have evidence you talked about this source to your friend, why not tell us?" Contempt -Say you are issued a ..., you hire a lawyer to try and resist it and bring up shield law. Shield law cannot protect you, but still try and refuse it, still not giving that name up! Could receive a contempt of court charge... possibly face monetary fines or jail time -Two Kinds 1. Contempt power can be used to protect the ... of a ... in a legal dispute -This is the ... form of contempt; not common but a person who is ... in a ... dispute 2. Contempt power can be used to v... the ..., the a... of the ..., or the p... of the ... -The ...'s mechanism of p... its orders - e... in some way! ... ... rule (D... Rule) -All court orders, even those that appear to be ... and are later deemed to be ... by an appellate court, must still be ... until they are o...! -Why might this be? Cause of contempt (even if ...) - reinforces the ... of the court! If you could just place a lawsuit to refuse an order, you're undermining the mechanism of the court's l... and s...! You don't get out of a l... r..., the l... gets you out! Common Journalistic Situations Leading to Contempt a. Failure to pay a ... in a ... or ... of ... case Example: Are found liable for ... (same blank) - subject to damages. You are required by law to pay these people. If you refuse, you can be held in contempt! b. Failure to obey a ... ... Example: Subpoenaed to disclose the name of a source, you are forced to by law! If you refuse, can be held in contempt! c. Refusal to ... the ... of a ... or to testify in court before a ... ... -Branzburg - no right to resist (in violation of a court's authority if you do) d. C... ... about the ... -What about the First Amendment Must pose a "c... and ... ... to the a... of j..." Example: You release an allegation the judge acted improperly with the defendant in a case, no evidence and slander - could be found for contempt because this could disrupt the legitimacy of the court! e. T... with a ... Example: Trying to interview the ... when they are sequestered, or ask for information when not privy to

uLimits police search and seizure powers uTo obtain work products or documentary materials, law enforcement agencies must obtain a subpoena (a search warrant is not enough). uTwo exceptions: uIf there is probable cause to believe the person possessing such materials has committed a related criminal offense (suspect exception) uIf there is reason to believe that the immediate search/seizure is necessary to prevent death or serious harm. Subpoena Disseminate, wider audience Seize Suspect, crime Suspect, search warrant uSearch warrant may be used instead of a subpoena if: uReason to believe that the giving of notice pursuant to gaining a subpoena would result in the destruction, alteration or concealment of such materials uSuch materials have not been provided in response to a court order directing compliance with a subpoena, all other legal remedies have been exhausted, and there is reason to believe that further delay in gaining the material would threaten the interests of justice. Subpoena Destroy the evidence! Subpoena Targeted, criminal activity, criminal activity uDon't promise confidentiality to a source unless absolutely necessary. uDiscuss with an editor before granting anonymity. uDon't talk about stories with confidential information with people outside the newspaper (might impact your ability to claim privilege). Lawyers, lawyers, editor/newsroom Gossip, confidential sources Confidential source Reporter's privilege Subpoena uTwo Kinds uContempt power can be used to protect the rights of a litigant in a legal dispute Civil, suing, civil uContempt power can be used to vindicate the law, the authority of the court, or the power of the judge Court's, policing, enforceable uCollateral bar rule (Dickinson Rule) uAll court orders, even those that appear to be unconstitutional and are later deemed to be unconstitutional by an appellate court, must still be obeyed until they are overturned. uWhy might this be? (unconstitutional) Power, legitimacy and strength, law requirement, law uCommon journalistic situations leading to contempt: uFailure to pay a judgment in a libel or invasion of privacy case uFailure to obey a court order uRefusal to disclose the identity of a source or to testify in court before a grand jury uCritical commentary about the court uMust pose a "clear and present danger to the administration of justice" uTampering with a jury

Exemption 2: Housekeeping Practices Matters related solely to the in... p... rules and practices of an agency Supreme Court in 2011 ruled Exemption 2, which protects disclosure material that is related solely to the in... p... rules and practices of an agency could not be used by Department of the Navy to suppress release of data and maps relating to a naval base where weapons and explosives are stored in Puget Sound, WA Milner v. Department of the Navy -Court reasoned Exemption 2 relates to an agency's p... rules and practices - this means an agency's rules and practices dealing with e... r... or h... ...! All rules and practices referenced in Exemption 2 share a critical feature: They concern the conditions of ... in federal agencies - such matters as h... and ...; w... rules and disciplines; c... and b... -Under the "plain meaning" of the words in Exemption 2, the maps and data requested didn't qualify for withholding under that exemption. The Government has other tools at hand to shield n... ... information and other sensitive materials. Notably, Exemption ... of FOIA prevents access to c... documents! Milner ruling gave a very ... reading and interpretation of Exemption 2 and put an end to federal government using it more ... to try and suppress the disclosure of records that would risk circumvention of federal agency functions -Some lower courts have adopted such an expansive interpretation (known as "... 2" interpretation) but the high court's ruling specifically ... it!

2. Housekeeping Practices Exemption #2: Matters related solely to the internal personnel rules and practices of an agency. 2011, Supreme Court ruled Exemption 2, which protects from disclosure material that "is related solely to the internal personnel rules and practices of an agency" could not be used by Department of the Navy to suppress the release of data and maps relating to a naval base where explosives and weapons are stored in Puget Sound, Wash. The Navy had refused to release the data, alleging that disclosure would threaten the security of the base and surrounding community. The Court reasoned in Milner v. Department of the Navy that as used in Exemption 2, "an agency's 'personnel rules and practices' are its rules and practices dealing with employee relations or human resources" and that "all the rules and practices referenced in Exemption 2 share a critical feature: They concern the conditions of EMPLOYMENT in federal agencies - such matters as hiring and firing, work rules and discipline, compensation and benefits" Under what the court called "plain meaning" of the words in Exemption 2, the maps and data requested did not qualify for withholding under that exemption. Rather than use Exemption 2, Court added, "the Government has other tools at hand to shield national security information and other sensitive materials. Most notably, Exemption 1 of FOIA prevents access to classified documents" 2011 ruling in Milner was important because it gave a very narrow reading and interpretation to Exemption 2 and put an end to federal government using it more broadly to try to suppress disclosure of records that would risk circumvention of federal agency functions. Some lower courts have adopted such an expansive interpretation (known as "High 2" interpretation), but the high court's ruling in Milner specifically rejected it.

Federal jury in Los Angeles convicted adult filmmaker Ira Isaacs on multiple counts of obscenity for distributing on his Web site fetish films that featured s... and ...; the videos went far beyond the type of content found in mainstream adult content. Isaacs testified his movies were "shock art" that merely "explored the darker side of the human condition" - sentenced to four years in federal prison The Ira Isaacs case was the last major ... ... p... in the United States. Due to a combination of: 1. The m... p... of ... ..., which makes it harder to win an ... c... (unless the content features ... and s... or appears to portray v...) 2. The decision to focus resources on prosecuting ... ... and the s... ... of ... than ... cases (... ... and ... are different concepts and should not be confused with each other) 3. Large-scale producers of adult content in U.S. know what kind of content not to show to avoid ... Despite recent ... of ... p..., sexually explicit content remains highly controversial in some quarters -Criticized by religious conservatives, anti-pornography feminists, some lawmakers -2021, Utah legislature passed law requiring all cell phones and tablets sold to "automatically enable a filter capable of ... material that is h... to ..." (it will not take effect until five other states enact similar laws) -2016, Utah legislature passed a r... that declared ... a p... ... c...; more than 15 states have since advanced similar r... (Kansas) -Municipalities across the country continue to ... adult bookstores and strip clubs to a few tiny areas of the community and far away from ..., ..., p... r... The Law of Obscenity Supreme Court Justice Harlan described the regulation of sexually explicit speech as an "... ..." It remains equally ... today, despite two important facts: 1. Supreme Court made it clear more than 60 years ago in ... v. ... that a ... category of sexually explicit speech called "..." is not protected by ... ... freedoms of ... and ... 2. Supreme Court articulated in ... v. ... a test still used by ... courts for determining when speech is ... Problems exist today for many reasons 1. The Miller obscenity test leaves ... ... for in... in its actual ... by judges and juries. The test embraces the use of c... ... ... that vary from ... to ..., leading to the anomalous result that any given adult content might be protected by the ... ... in one ... but not another! 2. The Internet, smartphones, cable and satellite TV services have made adult content r... ...; good news for consenting adults who want to view it in the privacy of their homes, unfortunate news for ... of ..., who may intentionally or unexpectedly come across it with greater ease 3. Some people feel speech considered obscene under ... nonetheless deserves ... ... protection: Not only is sexually explicit content a ... form of entertainment enjoyed by many adults, but evidence is ... and c... about whether it actually causes ...! -Feminist legal scholars like MacKinnon claim pornography o.. women and represents "the ... of men over women, expressed through u... sex, sanctioned both through and prior to ... power" -Religious conservatives claim pornography harms f... ..., erodes m..., and leads to ... that destroys users' lives Though the arguments of both deserve study, the term "pornography" is not the same thing as ...! ... has a ... definition under the ... test, whereas "pornography" is without ... significance in the U.S. and is instead commonly used/misused as a ...-... term by laypeople to describe anything sexually explicit they find ... or believe is h... Some women in the adult industry contradict certain ... ... about the kind of women who perform in adult movies -Belle Knox (Duke University student) -Casey Calvert (magna cum laude graduate from University of Florida) -Calvert has directed and written columns on sex and the adult industry -Veteran female stars have also worked as writers and directors -This isn't to say ... does not exist today in the adult movie industry, but some female performers are indeed smart and c... the ... in which they and others appear 4. There is the question of the in... use of ... government monetary resources in prosecuting ... cases when the content involves ... who freely ... to take part in activities shown. Many people feel there are greater problems to worry about, such as ... ... - a distinct category of sexually explicit speech that like ... is not protected by the ... ... 5. Problem of dealing with sexually explicit content that may not quite rise to the level of ... under ..., but is sexual and broadcast over the nation's ... and ... a... (Federal Communications Commission restricts such ...-... ... content if it satisfies FCC's definition of ... (which is extremely problematic in its real-world application, much like "..." under the ... test) Obscenity: a ... class of material defined by the Supreme Court in the ... test. Material that is obscene is not protected by the ... ..., sometimes referred to as "... ..." Indecent Material: material that may be ... g...; often referred to as adult material or sexually explicit material. This material is protected under the ... ..., however such material may be barred in works available to ... (... ... laws) and in ...-the-... ... and ... broadcasts (as opposed to ... or s... generated) Pornography: term that has no ... ... but is often used by laypeople and politicians to describe anything from real ... to material like a passionate love scene that may be simply ... to the viewer. The overuse and misuse of this im... term adds more confusion to an already muddled landscape Early Obscenity Law -The first obscenity ... in the United States was in 1815, when Jesse Sharpless was fined for exhibiting a painting of a man "in an imprudent posture with a woman." There are on record e... ... for offenses tied to obscenity (common law prosecutions for "crimes against God") 1821, Peter Holmes convicted for publishing erotically enhanced version of "Memoirs of a Woman in Pleasure" -As 19th century progressed, obscenity ... and ... become more common, ebbing and flowing with major reform movements in 1820s, 30s and in wake of ... ... (first state laws) -The first federal obscenity ..., a customs law that regulating the ... of obscene a..., adopted in 1842 (first federal law). The most comprehensive federal ... adopted during the century was in 1873. -Known as the ... Act (Anthony ..., his intense pressure applied to Congress - U.S. Postal Inspector and founder of New York Society for the Suppression of Vice) law declared all obscene ..., ..., ..., and other materials were n...-...; no ... of obscenity provided by Congress! The ... law, as amended, remains ... law today! -Federal ... like the B... of ... and the ... ... S... were the nation's most vigilant obscenity fighters during late 19th century and first half of 20th century. These ... ..., ..., and c... huge amounts of erotic material including religious objects, pieces of art, books, magazines (including science and diving publications) and a wide array of material on birth control. Local and state censors went after films they believed to be obscene too -The courts, especially ... courts, became inundated with obscenity ... and a... - U.S. Supreme Court seems drawn to such litigation (1957-77 heard arguments in nearly 90 cases and wrote opinions on nearly 40) Stark contrast to today, Supreme Court has not head a ... obscenity case in the ... century involving whether or not a particular movie, book, magazine, Web site or other media product was obscene -Considered other issues since year ..., such as c... of s... regulating ... ..., virtual ... ... and ...-... sexual content on the Internet

Chapter 13: Regulation of Obscene and Other Erotic Material In 2012, federal jury in Los Angeles convicted adult filmmaker Ira Isaacs on multiple counts of obscenity for distributing on his Web site fetish films that featured scatology (interest in excrement) and bestiality. The videos, with titles such as "Hollywood Scat Amateurs" went far beyond the type of content found in mainstream adult content produced by the likes of Wicked Pictures and Vivid Entertainment. As described by U.S. Department of Justice (DOJ) in a press release trumpeting the conviction of Isaacs, "the obscene videos included a video approximately two hours in length of a female engaging in sex acts involving human bodily waste and a video 1:37 minutes in length of a female engaged in sex acts with animals." Isaac, in contrast, had testified his movies were a form of "shock art" that merely "explored the darker side of the human condition." In 2013, 61-year-old Isaacs was sentenced to serve four years in federal prison. By 2021, however, the Ira Isaacs case was the last major federal obscenity prosecution in the United States. Partly due to a combination of 1) the mainstreaming popularity of adult content, which makes it harder to win an obscenity conviction (unless the content features bestiality and scatology or appears to portray violence) 2) the decision to focus resources on prosecuting child pornography and the sexual exploitation of minors than obscenity cases (child pornography and obscenity are very different concepts and should not be confused with each other) and 3) the fact large-scale producers of adult content in the U.S. (Wicked Pictures, Hustler, Brazzers, Evil Angel) know what kind of content now to show to avoid prosecutions. Despite recent scarcity of obscenity prosecutions, sexually explicit content remains highly controversial in some quarters. It is criticized by religious conservatives, anti-pornography feminists, and by some lawmakers. In 2021, Utah legislature passed law required all cell phones and tablets sold in the state to "automatically enable a filter capable of blocking material that is harmful to minors" (law included a loophole that says it will not take effect until five other states enact similar laws). In 2016, Utah legislature also passed resolution that declared pornography a public health crisis. More than 15 states have since advanced similar resolutions, including Kansas. Kansas resolution called pornography a "public health hazard that leads to a broad spectrum of individual and public health impacts and societal harms." Additionally, municipalities across country continue to zone adult bookstores and strip clubs to a few tiny areas of the community and far away from parks, schools, private residences. The Law of Obscenity An "intractable (hard to control/deal with) problem" - how the U.S. Supreme Court Justice Harlan described regulation of sexually explicit speech. Sadly, it remain equally problematic today, despite two important facts: 1. The nation's high court made it clear more than 60 years ago in Roth v. United States that a narrow category of sexually explicit speech called "obscenity" is not protected by the First Amendment freedoms of speech and press. 2. The Supreme Court articulated in Miller v. California a test still used by all courts for determining when speech is obscene. Problems exist today for many reasons: 1. The Miller obscenity test leaves much wiggle room for interpretation in its actual application by judges and juries. The test also embraces the use of contemporary community standards that vary from state to state, leading to the anomalous (irregular) result that any given adult content might be protected by the First Amendment in one state but not another. 2. The Internet and smartphones, as well as cable and satellite television services, have made adult content readily accessible. Good news for consenting adults who want to view it in the privacy of their homes where no one else in the community needs to see or be offended by it, but it is unfortunate news for parents of minors, as young children may come across it (intentionally or unexpectedly) with greater use. 3. Some people feel that speech considered obscene under Miller nonetheless deserves First Amendment protection. Not only is sexually explicit content a popular form of entertainment enjoyed by many adults, but evidence is inconsistent and conflicting about whether it really causes harm. Feminist legal scholars like Catharine MacKinnon claim pornography objectifies women and represents "the power of men over women, expressed through unequal sex, sanctioned both through and prior to state power." Others feel equally as strongly, coming from a conservative, religious-based perspective, that pornography harms family values, erodes marriage and leads to addiction that destroys users' lives. Although the arguments of both anti-porn feminists and religious conservatives deserve study, it must be emphasized the term "pornography" is not the same thing as obscenity! While obscenity has a legal definition under the Miller test, term "pornography" is without legal significance in the U.S. and is instead commonly used (and misused) as a catch-all term by laypeople to describe anything sexually explicit they find offensive or believe is harmful. Beyond this, some women in the adult industry contradict certain negative stereotypes about the kind of women who perform in adult movies. 2015, Duke University student who performed under the name Belle Knox received an Adult Video News Award nomination as best new starlet. Casey Calvert, magna cum laude graduate of the College of Journalism and Communications at UF, earned 2016 AVN Award Nomination as female performer of the year. 2021, Calvert received more AVN nominations and won an AVN Award for directing. She has written columns about sex and the adult industry for the Huffington Post. Additionally, veteran female stars like Stormy Daniels and Nina Hartley have also worked as writers and directors. This is not to say that exploitation does not exist today in the adult movie industry (it does in almost all industries), but simply some female performers are indeed smart and control the content in which they and others appear! 4. There is the question of the inefficient use of scarce government monetary resources in prosecuting obscenity cases today when the content involves adults who freely consented to take part in the activities shown. Many people feel there are greater problems to worry about, such as child pornography - a distinct category of sexually explicit speech that like obscenity is not protected by the First Amendment. 5. There is the problem of dealing with sexually explicit content that may not quite rise to the level of obscenity under Miller (may not be quite as "bad" as obscenity), but that nonetheless is sexual and is broadcast over the nation's TV and radio airwaves. The Federal Communications Commission restricts such non-obscene sexual content if it satisfies FCC's definition of indecency (another legal definition, like "obscenity" under Miller test, is extremely problematic in its real-world application) Common Terms Obscenity: Narrow class of material defined by the Supreme Court in the Miller test. Material that is obscene is not protected by the 1A. Obscene material is sometimes referred to as "hard-core pornography" Indecent Material: Material that may be sexually graphic; often referred to as adult material or sexually explicit material. This material is protected under the 1A. However, such material may be barred in works available to children (variable obscenity laws) and in over-the-air (as opposed to cable or satellite generated) radio and TV broadcasts (FCC) Pornography: Term has no legal significance but is often used by laypeople and politicians to describe anything from real obscenity to material such a passionate love scene simply offensive to the viewer. The overuse (and misuse) of this imprecise term adds more confusion to an already muddled legal landscape Early Obscenity Law The first obscenity prosecution in the U.S. was in 1815, when Jesse Sharpless was fined for exhibiting a painting of a man "in an imprudent posture with a woman." There are on record earlier convictions for offenses tied to obscenity; there was prosecutions under common law for crimes against God, not merely displaying erotic pictures. In 1821, Peter Holmes was convicted for publishing an erotically enhanced version of Cleland's Memoirs of a Woman in Pleasure. As the 19th century progressed, obscenity laws and prosecutions became more common, ebbing and flowing with major reform movements in the 1820s and 30s and in the wake of the Civil War. The first federal obscenity statute, a customs law regulating the importation of obscene articles, was adopted in 1842. The most comprehensive federal statute adopted during the century became law in 1873. Known as the Comstock Act because of intense pressure applied on Congress by Anthony Comstock (U.S. postal inspector and founded the New York Society for the Suppression of Vice), the law declared all obscene books, pamphlets, pictures, and other materials were nonmailable. No definition of obscenity provided by Congress though! The Comstock law, as amended, remains federal law today. Federal agencies such as Bureau of Customs and U.S. Postal Service were nation's most vigilant obscenity fighters during late 19th and first half of the 20th centuries. These agencies banned, burned and confiscated huge amounts of erotic materials including religious objects, pieces of art, books (including some of the best written during that era), magazines (including science and diving publications) and a wide array of material on birth control. When the motion picture industry began to grow in early part of this century, local and state censors went after films they believed to be obscene as well. The courts, especially federal courts, became inundated with obscenity prosecutions and appeals. The U.S. Supreme Court seemed especially drawn to such litigation - between 1957-77, Supreme Court heard arguments in almost 90 obscenity cases and wrote opinions in nearly 40 of these cases. In stark contrast, as of 2021, the Supreme Court has not heard a single obscenity case in the 21st century involving whether/not a particular movie, book, magazine or Web site or other media product was obscene. It has, instead, considered other issues since the year 2000, such as the constitutionality of statutes regulating child pornography, virtual (computer-generated) child pornography and non-obscene sexual content on the Internet

How does the law affect the efforts of reporters and ordinary citizens to gather information about what is going on in the nation and in their communities? Until about 25 years ago, we focused on federal and state statutes that either p... or l... the gathering of information from ... r... or from m... of ... a...; today the law on news gathering is also focused on efforts by ... and others to stop the press from collecting data on a wide range of people and activities Information is the lifeblood of American journalism! Until the mid-20th century there were f... s... r... that defined the rights of ..., including ..., to gain access to the information generated and kept by the ...! Reporters developed sophisticated but informal schemes with news sources in ... to get the material they needed; the a... ... was SHUT OUT Since the 1950s, state and federal governments have passed laws defining public access to ... and ...; if there was a "Golden Age of Access" to information it was likely the ...s and ...s, since then there has been a growing ... r... to public (especially press) access to such materials! Example: Final year in office, Obama administration spent more than $36 million on legal costs defending its refusal to turn over records under the Freedom of Information Act. And under Trump, FOIA rejections and redactions increased. FOIA was "significantly worse off than it was four years ago." (2020) It could be a natural tendency for those in power to try to keep ... affecting administrations Journalists and citizens are often forced to go to ... to assert their rights they believed have been abridged by government restriction on access to info. But rights and liberties are grounded in the ...! If journalists hope to use the ... for assistance, must find support in one of the ... s... of the ...! News Gathering and the Law For journalists to gather news, must have access to information. There are three primary sources of the law to which journalists may look to find legal right of access to information (documents, records, meetings, venues): 1. Common Law Despite a tradition of ... ... in this country, common law provides only b... a... to ... documents and meetings of ... a...! -Secrecy in England had impact on how colonial legislatures conducted their business. -The Constitutional Convention of 1787 in Philadelphia was conducted in secret. -The public and press had almost immediate access to sessions in the U.S. House of Representatives, but it wasn't until 1794 they were allowed into the Senate chamber Although today access is guaranteed to nearly all sessions of Congress, much (possibly most) congressional business is conducted by committees that frequently meet in ...! Common-law precedents exist that open certain public records to inspection by members of the public, but d... ... have been placed on this common-law right: -Under common law a person seeking access to a record must have an "..." in that record. Most often this ... must relate to some kind of litigation in which the person seeking the record is a ...! Also only those records "r... to be ..." by state law are subject to even such l... ... under common law. Many important records ... by the government are not "... to be ..." by the law. Common law must be found wanting as an aid in the process of news gathering 2. Constitutional Law (1st Amendment to U.S. Constitution) Does the Constitution provide any assistance to citizens who seek to scrutinize government records or attend meetings of government bodies? The First Amendment plays a rather ... role in defining the rights of citizens and journalists in the ...-... process. The amendment was drafted in an age when ... ... was not a p... f... of the press! Congressional records of the drafting and adoption of 1A fail to support the notion the protection of the ...-... process to be included within the scope of ... of the ... The First Amendment was seen as a means by which the public could ... the government, not necessarily ... on its a...! Supreme Court has explored connection between freedom of expression and ... ...; in a non-press related case in 1964, ruled the constitutional right to speak and publish does not carry with it the unrestricted right to ... ... Justice White, speaking for three other members of Court, "Nor is it suggested that ... ... doesn't qualify for 1A protection; without some protection for ... out the ..., freedom of the press could be eviscerated" While some lawyers regard this as supporting a constitutional right to ... ..., others do not (1972) Supreme Court has been asked on three occasions whether 1A guarantees a journalist the unobstructed right to ... ... in a prison Each time the Court said...? 1. Pell v. Procunier - reporters in CA attempted to interview s... ... at CA prisons 2. Saxbe v. Washington Post - reporters sought to interview s... ... at federal prisons in Penn. and CT In both instances, the press was ... from conducting the ...; U.S. Bureau of Prison rule is similar to CA legislation - Press representatives will not be ... to interview ... ... - rule shall apply even when the ... r... or s... the interview! What was not at issue was access to the prison system. The press can tour and photograph prison facilities, conduct brief conversations with r... e... inmates and correspond with inmates through mail. Federal rules have been interpreted to allow journalists lengthy interviews with r... ... groups of inmates The argument from the press in both cases was to ban interviews with ... ... abridged 1A protection afforded in the ...-... activity of a press Supreme court ...? Decision in both cases...? The press already has substantial access to the prisons and there was no evidence prison officials were hiding things from reporters. Rejected the notion 1A gave journalists a s... ... of ... to the prisons! "Newsmen have no constitutional ... of ... to prisons or their inmates beyond that afforded to the ... ...!" (Stewart) Since members of the ... ... have no right to interview ... ..., neither do the press and this does not infringe on their 1A rights The Supreme Court did not disagree with the findings of the district court that ...-to-... interviews with s... ... are essential to a... and e... reporting about prisoners and prisons. What the Court seemed to say is while the 1A guarantees freedom of expression, it does not guarantee ... and ... ...! 3. Supreme Court split along similar lines in case involving press access to county jail. Inmate at Santa Rita County jail committed suicide. Following the death and report from psychiatrist jail conditions were bad, KQED TV sought permission to inspect and take pictures in jail. Sheriff announced the media could participate in their tours of the facility given to the ... each year. But tours did not visit disciplinary cells or the portion of the jail the suicide occurred. No cameras or tape recorders allowed, but photographs of some part of jail supplied by sheriff's office. Chief Justice Burger (1978) wrote in opinion for 4-3 decision: "Neither the ... ... nor the ... ... mandates a right of ... to g... ... or s... of ... within the ...'s control" Burger troubled by argument of KQED only through ... to the jail could press perform its public responsibility "KQED made an implicit assertion m... ... to the jail is essential in informed public debate on jail conditions, this is the assumption media personnel are the b... q... persons for the task of discovering malfeasance in public institutions. The media are not a ... for or an a... of the .... Cannot confuse the role of the ... with the ...!" 1980 (Richmond Newspapers), case many commentators hailed as beginning of a generally ... g... "right to k..." Supreme Court ruled the 1A does establish for all citizens right to attend ... t...! But while Burger's opinion was explicit with 1A and ... t... attendance, was obscure regarding the larger c... r... to ... news in other contexts. And the Supreme Court has done ... since then to ... its position on the question. Supreme Court has never explicitly r... this right outside of ... p... The lower federal courts and state courts tend to ... rulings by the Supreme Court that reject the notion of a 1A right of ... to ... and m...; ARE significant ...! -2008, federal district court reiterated finding of other courts that ... p... is protected by the 1A (involves discussion of governmental affairs and politics as well as media's right to ... n...). Ruled though ...-... regulations are impermissible, ...-..., ..., ... and ... restrictions may be OK depending on how far media are kept from the p... -3rd Circuit disagreed (no protected 1A right of ... to a p... place for ...-g... purposes) For the last 20 years, states have struggled to define the public's right of ... to information about ...! Media organizations and death row inmates have sought information about ... states us to ... inmates. Media organizations have sought right to attend ... -Some courts have agreed there is a right to attend ... 9th Circuit (2002), the public enjoys a "1A right of ... to view ... from the moment the condemned is escorted to the ... c..." ... was supported because of the need for in... p... ... about the ... p... 9th Circuit (2012), reiterate position after ID refused to allow witnesses access to the initial part of an ... procedure. Associated Press v. Otter, Judge Reinhardt rebuked ID and unanimous three-judge panel "1A protects right to witness ... in their entirety" 9th Circuit (2019), expand right to attend ... to also include "a right to hear ... of ... in their entirety" ... process in AZ, witnesses could observe the ... in a designated room adjacent to. The Department of Corrections turned off the monitors and microphone in the ... room after lines were inserted, preventing witnesses from being able to ... any ... in the room. 9th Circuit ruled the practice violated the 1A "Witnesses need to be able to observe and report on the entire process so the public can determine whether lethal injections are fairly and humanely administered" First Amendment Coalition of Arizona v. Ryan Supreme Court has ... to review cases involving death row inmates' right of ... to information regarding the ... states will use to ... them or the q... of the ... who will administer the ...! Missouri Circuit Judge ruled MO must release the names of the ... that provide the ... for ... (BUT this concerned the state's "right to know" or "sunshine law" not the 1A). The court ruled the records were "... records" as defined by MO's Sunshine Law and must be disclosed! The law has allowed states to withhold the identity of p... who provide d... s... for the administration of lethal gases or chemicals, ... were not "p..." as defined by the law 9th Circuit ruled there was a 1A right of ... to information about ... used in executions and the ... of ... who would administer them. The U.S. Supreme Court would ... this decision! In 2019, 9th Circuit ruled instead the 1A did NOT provide a right of ... to information about ... or documentation on the ... of ... t... m... Other circuit courts rule similarly 11th Circuit declined to find a ... right of ... to this information, reasoning "Neither the ..., ..., or ... Amendments afford prisoner broad right to know where, how and by whom l...-... ... will be manufactured or any information on the ... or identity of the .../... who will manufacture or administer them"

Chapter 9: Gathering Information - People, Places, Records and Recording How the law affects the efforts of reporters and ordinary citizens to gather information about what is going on in the nation and in their communities. Until about 25 years ago the text focused on federal and state statutes that either permit or limit the gathering of information from government records or from meetings of government agencies. Today the law regarding news gathering is also focused on efforts by the government and others to stop the press from collecting data about a wide range of people and activities. Information is the lifeblood of American journalism and American politics. Until the mid-20th century there were few significant rules that defined the rights of citizens, including journalists, to gain access to the information generated and kept by the government. Reporters developed sophisticated but informal schemes with news sources in government to get the material they needed. The average citizen was shut out. Since the 1950s state and federal governments have passed laws defining public access to records and meetings. If there was a "Golden Age of Access" to information, it was likely in the 1970s and early 1980s. Since then, there has been a growing government resistance to public (especially press) access to such materials. In its final year in office, for instance, the administration of President Barack Obama spent more than $36 million on legal costs defending its refusal to turn over records under the Freedom of Information Act (FOIA). And under President Trump, FOIA rejections and redactions increased. Nate Jones, FOIA director for Washington Post, said in late 2020 that FOIA "was significantly worse off than it was four years ago." Perhaps a natural tendency for those in power to try to keep secrets affecting administrations. Journalists and citizens are often forced to go to court to assert their rights they believed have been abridged by government restrictions on access to information. But rights and liberties are grounded in the law. When someone goes to court and asks for something, the first thing the judge will say is "Show me the law." So if journalists hope to use the law for assistance, they must find support in one of those five sources of law. News Gathering and the Law In order for journalists to gather news, they must have access to information. Are three primary sources of law to which journalists might look to find a legal right of access to information such as documents, records, meetings and venues: 1. Common Law 2. Constitutional Law (1st Amendment to the U.S. Constitution) 3. Statutory Law (both state and federal statutes) (1) Despite tradition of open government both in this country and Britain, common law provides only bare access to government documents and meetings of public agencies. Secrecy in England had direct impact on how colonial legislatures conducted their business. The Constitutional Convention of 1787 in Philadelphia was conducted in secret. The public and the press had almost immediate access to sessions in the U.S. House of Representatives, but it was not until 1794 that spectators and reporters were allowed into the Senate chamber. Although today access is guaranteed to nearly all sessions of Congress, much (maybe even most) congressional business is conducted by committees that frequently meet in secret. Common-law precedents exist that open certain public records to inspection by members of the public, but distinct limitations have been placed on this common-law right. Example: Under common law a person seeking access to a record normally must have an "interest" in that record. Most often this interest must relate to some kind of litigation in which the person who seeks the record is a participant. Also, only those records "required to be kept" by state law are subject to even such limited disclosure under common law. Many important records kept by the government are not "required to be kept" by law. Hence, common law must be found wanting as an aid in the process of news gathering. (2) The Constitution and News Gathering Does the U.S. Constitution provide any assistance to citizens who seek to scrutinize government records or attend meetings of government bodies? Surprisingly the First Amendment plays a rather insignificant role in defining the rights of citizens and journalists in the news-gathering process. The amendment was drafted in an age when news gathering was not a primary function of the press. The congressional records of the drafting and adoption of the 1A fail to support the notion the protection of the news-gathering process as to be included within the scope of freedom of the press. The First Amendment was seen as a means by which the public could confront its government, not necessarily report on is activities. The Supreme Court has explored the connection/nexus between freedom of expression and news gathering. In a non-press related case in 1964, the high court ruled the constitutional right to speak and publish does not carry with it the unrestrained right to gather information. In 1972, Justice Byron White, speaking for three other members of the court, said: "Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated." While some 1A lawyers regard this statement as supporting a constitutional right to gather information, others do not. The high court has been asked on three occasions whether the First Amendment guarantees a journalist the unobstructed right to gather news in a prison. In each case the court said no. In Pell v. Procunier, reporters in California attempted to interview specific inmates at California prisons. In Saxbe v. Washington Post, reporters from that newspaper sought to interview specific inmates at federal prisons at Lewisburg, Pa., and Danbury, Conn. In both instances the press was barred from conducting the interviews. The U.S. Bureau of Prisons rule, which is similar to California regulation: Press representatives will not be permitted to interview individual inmates. This rule shall apply even where the inmate requests or seeks an interview. At issue was not access to the prison system. The press could tour and photograph prison facilities, conduct brief conversations with randomly encountered inmates and correspond with inmates through the mail. In addition, federal rules had been interpreted to permit journalists to conduct lengthy interviews with randomly selected groups of inmates. In fact, a reporter in the Washington Post case did go to Lewisburg and interview a group of prisoners. The argument of the press in both cases was to ban interviews with specific inmates abridged the 1A protection afforded the news-gathering activity of a press. The Supreme Court disagreed in 5-4 decision in both cases. Justice Stewart wrote in majority opinion the press already had substantial access to the prisons and there was no evidence that prison officials were hiding things from reporters. Stewart rejected notion the 1A gave journalists a special right of access to the prisons. "Newsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public." Since members of the general public have no right to interview specific prisoners, the denial of this right to the press does not infringe on the 1A. The high court did not disagree with the findings of the district court in the Saxbe case that face-to-face interviews with specific inmates are essential to accurate and effective reporting about prisoners and prisons. What the court seemed to say was while the 1A guarantees freedom of expression, it does not guarantee effective and accurate reporting. In 1978, Supreme Court was split along similar lines on a case involving press access to a county jail. An inmate at Santa Rita County, CA jail committed suicide in 1975. Following the death and a report by a psychiatrist that jail conditions were bad, KQED television sought permission to inspect and take pictures in the jail. Sheriff Houchins announced the media could certainly participate in one of the six tours of the jail facility given to the public each year. However, the tours did not visit the disciplinary cells nor the portion of the jail in which the suicide had taken place. No cameras or tape recorders were allowed, but photographs of some parts of the jail were supplied by the sheriff's office. Chief Justice Warren Burger wrote the opinion for the court in a 4-3 decision. "Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control." Chief justice seemed troubled by argument of KQED that only through access to the jail could press perform its public responsibility. "Unarticulated but implicit in the assertion that the media access to jail is essential for an informed public debate on jail conditions is the assumption media personnel are the best qualified persons for the task of discovering malfeasance in public institutions. The media are not a substitute for or an adjunct of government. We must not confuse the role of the media with that of the government." In 1980, in a case many commentators hailed as the beginning of a general constitutionally guaranteed "right to know," Supreme Court ruled the First Amendment does establish for all citizens the right to attend criminal trials. But while Chief Justice Burger's opinion was quite explicit regarding the First Amendment and attendance at criminal trials, it was obscure regarding the larger constitutional right to gather news in other contexts. And the Supreme Court has done little since then to clarify its position on the question. Though it has decided a number of right-to-access cases since Richmond Newspapers, the Supreme Court has never explicitly recognized this right outside of judicial proceedings. The lower federal and state courts tend to mirror rulings by the Supreme Court that reject the notion of a First Amendment right of access to information and meetings. There are significant exceptions. In 2008, federal district court reiterated the findings of other courts that "exit polling, which involves a discussion of governmental affairs and politics as well as media's right to gather news, is protected by the First Amendment." The court noted though content-based regulations on exit polling are impermissible, content-neutral time, place and manner regulations might be OK depending on how far away the media are kept from the polls. In direct contrast, though, the 3rd Circuit in 2013 concluded "There is no protected First Amendment right of access to a polling place for news-gathering purposes." For the last 20 years or so, states have struggled to define the public's right of access to information about executions. Media organizations and death row inmates have sought information about drugs states use to execute inmates. Media organizations have sought the right to attend executions. Some courts have agreed there is a right to attend executions. 2002, 9th Circuit held the public enjoys "a First Amendment right of access to view executions from the moment the condemned is escorted into the execution chamber" The court reasoned access was supported because of the need for informed public debate about death penalty. One decade later, 9th Circuit reiterated its position after Idaho refused to allow witnesses access to the initial part of an execution procedure (the entry of the condemned individual into the execution chamber and the insertion of intravenous lines into his body). In 2012, Associated Press v. Otter, Judge Reinhardt rebuked Idaho and wrote for unanimous three-judge panel "the First Amendment protects right to witness executions in their entirety" Then in 2019, 9th Circuit expanded the right to attend executions to include "a right to hear the sounds of executions in their entirety" During the execution process in Arizona, witnesses could observe the execution in a designated room adjacent to the execution room. The Department of Corrections though turned off the closed-circuit monitors and the overhead microphone in the execution room after intravenous lines were inserted into the prisoner, preventing witnesses from being able to hear any sounds in the room. 9th Circuit ruled the practice violated the 1A. "Execution witnesses need to be able to observe and report on the ENTIRE PROCESS so the public can determine whether lethal injections are fairly and humanely administered" First Amendment Coalition of Arizona v. Ryan. "Barring witnesses from hearing sounds after the insertion of intravenous lines means the public will not have the full information regarding the administration of lethal-injection drugs and the prisoner's experience as he dies" U.S. Supreme Court has declined to review cases involving death row inmates' right of access to information regarding the drugs states will use to execute them or the qualifications of individuals who will administer the drugs. 2016, Missouri Circuit Judge ruled Missouri must release the names of pharmacies that have provided the lethal injection drugs for executions. The case, however, concerned a state "right to know" or "sunshine law" not the First Amendment. The court ruled the records were "public records" as defined by Missouri's Sunshine Laws and thus must be disclosed. While the law in question allowed states to withhold the identity of persons who provided direct support for the administration of lethal gases or chemicals, pharmacies were not "persons" as defined by the law. In 2014, based on its own decision in California First Amendment Coalition v. Woodford and U.S. Supreme Court's decisions in cases dealing with a right of access to judicial documents, 9th Circuit ruled there was a First Amendment right of access to information about drugs used in executions and the qualifications of individuals who would administer these drugs. The U.S. Supreme Court, though, vacated that 9th Circuit decision. Then in 2019 case First Amendment Coalition of Arizona v. Ryan, the 9th Circuit ruled instead that the First Amendment did not provide a right of access to information about lethal-injection drugs or documentation regarding the qualifications of execution team members. Other circuit courts have ruled similarly. In 2014, for example, 11th Circuit declined to find a constitutional right of access to this information, reasoning "neither the 1st, 14th, or 5th Amendments afford a prisoner the broad right to know where, how and by whom lethal-injection drugs will be manufactured or any information about the qualifications or identity of the person or persons who will manufacture or administer the drugs"

Intrusion It is illegal to ..., p... or otherwise, upon the ..., ... or ... affairs of an individual if a reasonable person would find the manner of the intrusion to be ... ... -When people hear IOP, the intrusion tort is usually what comes to mind. Camera with telephoto lenses, hidden mics, snooping through recordings -Has a lot in common with both civil and criminal ..., so it isn't unusual for a plaintiff to sue for both intrusion and ... in the same lawsuit. But the c... and laws governing the legal actions are different! Not every intrusion is a ... -Google has 'Street View' map service that provides navigable views of streets in cities. Maps prepared by attaching panoramic camera to cars, which are driven around photographing areas along the streets. Vehicles normally stay on the public streets, but in one case car entered driveway of home -Homeowner sued for both IOP and ... - 3rd Circuit rejected intrusion because photos were simply an external view of the home and yard, something anyone could see walking or driving down public street. BUT when the car moved onto the driveway, it made an uninvited intentional entry onto ... ... (a ...)! Intrusion tort differs from other three torts in significant way: focuses exclusively on how information is ... and ..., NOT on how it is ... or ... -Successful intrusion suit can be brought regardless of whether/not the information ... is ever ... or because the legal harm occurs when the information is ... Most important legal element in an intrusion case is a "... ... of ..." If a court rules the plaintiff didn't enjoy a ... ... of ... when the defendant .../attempted to ... information, the intrusion suit will fail Intrusion and the Press An illegal intrusion can occur in many ways -Eavesdropping to overhear a conversation, gathering personal information from an individual's private records or computer, the use of a telephoto lens on a camera to photograph a subject -The court will ask in every case whether the subject enjoyed a ... ... of ... when the info was collected -Examples: A reporter who sits at a table in a restaurant and eavesdrops on the conversation at the next table ... committing an intrusion. If other diners can ... the conversation, the speaker didn't enjoy a ... ... of ... -BUT if the reporter hides in a closet in the subject's office and listens to the conversation, this ... an intrusion. Two people talking in a private office with the door closed have a ... ... of ... Courts are sorting out when an ... ... can expect to enjoy ... ... of ..., and the decisions have not been favorable to these users -At least two lower courts have ruled chat room users engaging in conversation and email messages to other participants didn't have a ... ... of ... -Federal court in MA, two employees didn't enjoy a ... ... of ... in the content of the explicit email messages sent and received at work -US Supreme Court ruled police sergeant didn't have a ... ... of ... when the city audited text messages he had sent on a pager issued to him by the city as long as his employers had a 'l... ...-related purpose' for inspecting communications. -1st Circuit ruled if email messages were stored for even a millisecond on the computers of an ... ... ... that transmitted them, federal wiretap laws weren't violated if ... of the ... read the messages -Federal court ruled while wiretap law prohibits eavesdropping on messages that aren't stored, it doesn't protect stored messages. Many questions regarding intrusion and online communication remain ...! -Reasonable expectation of privacy for Internet user sending/receiving material through a wireless connection (Wi-Fi)? -Personal emails sent/received on company computer are not shielded from company officials, but what about emails sent over company computer using a personal email account (Yahoo!)? Reasonable expectation of privacy? No Privacy in Public What occurs in ... is generally not regarded as being ...! Sounds like simple rule, in some ways it is: -Woman photographed dancing on a street corner (cannot argue in ... setting). But what occurs between married couple in their bedroom is ... (if there are no large windows where people standing on nearby public sidewalk/property can see in) But determining what is public and what is private in situations between these two extremes often gives judges and juries difficulty It depends! And this is often left for a ... to decide. But case law can provide guidance -California Court of Appeals, not an intrusion when photographer standing in public park took picture of crime victim -Federal appeals court ruled woman photographed while talking with TV producer as she stood at front door of her home didn't enjoy a ... ... of ... (standing in plain sight to anyone passing on the public street) An example of how one does not have a reasonable expectation of privacy in a public place -Spilfogel v. Fox Broadcasting Co. Plaintiff filmed for episode of show "COPS" without knowledge during traffic stop. Recorded on a public street (Florida law requires intrusion into a private place) Determining whether or not there is a reasonable expectation of privacy in the ... is often cumbersome for courts -ABC sent reporter to work as telephone psychic at telemarketing company in CA. Reporter secretly photographed and recorded conversations with co-workers. Network was sued for intrusion. California Supreme Court disagreed with network (did have a reasonable expectation of privacy) "In an office or other ... to which the general public doesn't have un... ... employees may enjoy a limited, but legitimate expectation of privacy (even if conversations are not completely private!)" -ABC, motion for summary judgment dismissed - secretly taped conversations at workshop given for aspiring actors by casting directors. By paying a fee, got to meet with directors (role in employing actors who appear in movies/TV). Reporter taped not only presentations but private conversations among performers during break. In California, all parties must agree to recording of conversation unless takes place in public gathering. Though some of the conversations could be heard by other students, plaintiffs still had reasonable expectation of privacy (NOT a public place, classrooms and restrooms) Judges often carefully look at a situation to judge the extent of potential intrusion -Car containing four people left I-10 and tumbled down embankment into drainage ditch. Rescue apparatus arrived, including helicopter with medic and flight nurse, also on board camera operator for TV program "On Scene: Emergency Response" Nurse wore mic that supplied audio stream for video. As rescue workers cut woman out of car, she was comforted by nurse (conversation recorded as photographer taped the rescue) -Sued for IOP, no reasonable expectation of privacy while being removed from the vehicle (located along public highway) Does the use of a zoom lens to photo or video a person in their own backyard constitute an intrusion into seclusion when the images are captured from a neighbor's home? -... ...! Depends on the specific ... and ... of the case (Whether a reasonable expectation of privacy occurs requires a highly f...-s... a...!) -Webb v. CBS Broadcasting Inc., obtain permission from neighbor of plaintiffs to bring video camera with zoom lens into neighbor's home and set up camera in front of kitchen window on first floor. From this vantage point, journalists able to video footage of plaintiffs near swimming pool in their backyard. "The backyard is visible to the ... ... from the first-floor window of the neighbor's house, when objects are in p... view, there is no legitimate expectation of privacy." (The court ruled in favor of ...!) Emphasized neighbor's house was on a hill 3-5 feet higher than plaintiff's backyard (allowing journalists to peer down into the backyard) and undisputed evidence tape made from the neighbor's kitchen window could have been made from the ... ... or ... ... because the backyard was visible to the ... from many vantage points! Plaintiffs ... case because simply not in a place a ... p... would believe to be secluded Courts will almost always reject the argument photographing someone in a truly ... place is an IOP. But sometimes there is a fine line between taking a photo and ... the subject of the photo -... have been a problem in CA and NY for many years. These aggressive photographers dog celebrities in hopes of getting a photo they can sell to a growing number of tabloid newspapers and magazines focusing on celebrities and entertainment business California has been aggressive in dealing with the ... (ANTI-... STATUTE) -State statute creates tort liability for physical and 'constructive' invasions of privacy through photographing, videotaping or recording a person engaged in a '..., ..., or ... activity' -Limits in-your-face photography and use of ... (telephoto lens) or ... ... devices (mics that can pick up conversations from great distances) -Triples damages celebrities may win from ... if assaulted while photos are taken, and denies photographer any ... from sale of pictures taken during such melees Statute toughened in 2010, abolished ... for individuals or companies that publish 'constructive IOP' pictures taken by photographers -Damages can be levied against media outlets that initially ... photos or recordings they know were taken in violation of the statute New part of statute received its first judicial challenge in 2012: Photographer allegedly drove over 80 miles/hour cut across multiple lanes of traffic on freeway chasing vehicle celebrity was driving. First person charged under California's Vehicle Code making it a misdemeanor to violate various CA safe driving laws to capture any type of visual image, sound recording, or other impression of another person for commercial purpose -Photographer made argument law singled out the press for special treatment, should be subject to heightened ... by the courts -California appellate court in 2015 ruled the code was a law of g... a... and did not single out the press (not limited to ... chasing down celebrities or reporters gathering news). Law was ... because it did not ... against the news media Amended in 2015 to include ... that might record images of celebrities flying above their property: Civil liability when person knowingly enters 'onto the land or into the ... ... the land of another person without permission

Intrusion It is illegal to intrude, physically or otherwise, upon the solitude, seclusion or private affairs of an individual if a reasonable person would find the manner of the intrusion to be highly offensive. When people hear phrase "IOP" the intrusion tort is what usually comes to mind. Cameras with telephoto lenses, hidden microphones, snooping through recordings - all of these associated with intrusion. Intrusion has a lot in common with both civil and criminal trespass. It isn't unusual for a plaintiff to sue for both trespass and intrusion in the same lawsuit. BUT the causes are different: Not every intrusion is a trespass and vice versa. Google has a 'Street View' map service that provides navigable views of streets in many American cities. Maps prepared by attaching panoramic cameras to cars, which are driven around photographing areas along the streets. Vehicles normally stay on the public streets, but in one case a car entered the driveway of a home in Penn. The homeowner sued for both intrusion and trespass. 3rd Circuit rejected intrusion claim, saying photos simply showed an external view of the home and yard, something that could be seen by any person walking or driving down the street. But when the car moved onto the driveway, it made an uninvited intentional entry onto private property: a trespass. This is a viable legal claim, the court ruled. The law governing the two legal actions is different too. The intrusion tort differs from the other three IOP torts in a very important way: Intrusion cases focus exclusively on HOW INFORMATION IS GATHERED AND COLLECTED, not on how it is reported or published. The act of gathering the material constitutes the intrusion. A successful intrusion lawsuit can be brought regardless of whether or not the info gathered is ever published or because the legal harm occurs when the info is gathered. The most important legal element in an intrusion case is what the courts call "a reasonable expectation of privacy." If a court rules a plaintiff didn't enjoy a reasonable expectation of privacy when the defendant gathered or attempted to gather the info, the intrusion suit will fail. Intrusion and the Press An illegal intrusion can occur in many ways. Eavesdropping to overhear a conversation, gathering personal information from an individual's private records or computer, the use of a telephoto lens on a camera to photograph a subject may too. The court will ask in every case in which an intrusion is alleged whether the subject enjoyed a reasonable expectation of privacy when the information was collected. This is the key to determining whether an IOP took place. A reporter who sits at a table in a restaurant and eavesdrops on the conversation at the next table isn't committing an intrusion. If other diners can hear the conversation, the speaker didn't enjoy a reasonable expectation of privacy. If, however, the reporter hides in a closet in the subject's office and listens to the conversation, this would be an intrusion. Two people talking in a private office with the door closed have a reasonable expectation of privacy. Courts are sorting out when an Internet user can expect to enjoy reasonable expectation of privacy, and the decisions have not been favorable to those who think the Web should be a secure haven. At least two lower courts have ruled the user of an online service who participated in a chat room conversation and sent email messages to other chat room participants didn't have a reasonable expectation of privacy with regard to the content of their messages. Federal court in Mass., ruled 2002 two employees of an insurance company didn't enjoy a reasonable expectation of privacy in the content of the sexually explicit email messages they sent and received at work. 2010, US Supreme Court ruled California police sergeant Quon didn't have a reasonable expectation of privacy when the city audited (inspected) text messages he had sent on a pager issued to him by the city, as long as his employers had a 'legitimate work-related purpose' for inspecting communications. A US District Court ruled a student lacked a reasonable expectation of privacy in files on a shred-usage university computer. And the 1st Circuit ruled if email messages were stored for even a millisecond on the computers of an ISP that transmitted them, federal wiretap laws weren't violated if employees of the provider read the messages. Company called Interloc, literary clearinghouse, made copies of the messages its subscribers sent to competitor Amazon. Interloc's customers were dealers in rare and out of print books, and while amazon didn't offer its customers out of print and rare books, it did help customers track down such books. The court ruled while wiretap law prohibits eavesdropping on messages that aren't stored, it doesn't protect stored messages. While many questions regarding intrusion and online communications have been answered, many have not. Courts have yet to rule on whether an Internet user who is sending or receiving material through a wireless connection - Wi-Fi - enjoys a reasonable expectation of privacy. And while courts are generally in agreement personal emails sent or received on a company computer aren't shielded from company officials, there has been no determination whether emails sent on a company computer by using a personal email account, such as one provided by Yahoo!, are also open to scrutiny by company officials. No Privacy in Public What occurs in public is generally not regarded as being private. Sounds like a simple rule, and in some ways it is. If a girl is photographed while twerking on a street corner, she can't argue she is in a private setting. On the other hand, what occurs between a married couple in their bedroom is certainly private (assuming their bedroom doesn't have a large glass window and people standing on a nearby public sidewalk cannot see inside). But determining what is public and what is private in situations between these two extremes often gives judges and juries difficulty. UT Supreme Court ruled whether a reasonable expectation of privacy existed depends on 'the exact nature of the conduct and all the surrounding circumstances' The court is saying, it all depends! And often it is left for a jury to decide. But case law can provide guidance: è California Court of Appeals ruled 2006, it wasn't an intrusion into a private place when a photographer standing in a public park took a picture of a crime victim è A federal appeals court ruled a woman who was photographed talking with a TV producer as she stood at the front door of her home didn't enjoy a reasonable expectation of privacy. The court noted she was standing in plain sight of anyone passing on the street The principle that one doesn't have a reasonable expectation of privacy in a public place is illustrated by the 2011 federal appellate court ruling Spilfogel v. Fox Broadcasting Co. The case centered on plaintiff Spilfogel, filmed for an episode of the TV show "COPS" without her knowledge during a traffic stop in Florida. S was recorded while on a public street discussing the details of her traffic stop for running through several stop signs and driving without a working tag and head lights on her vehicle. Applying FL law, the appellate court rejected her claim for intrusion into seclusion because "the recording occurred on a public street" and Florida law explicitly requires intrusion into a private place. It concluded that 'S voluntarily placed herself in a public place where she didn't have a reasonable expectation of privacy' Determining whether/not there is a reasonable expectation of privacy in the workplace often causes problems for the courts. ABC sent a reporter to work as a telephone psychic at a telemarketing company in CA. While there the reporter secretly photographed and tape-recorded conversations with several co-workers. Network was sued for intrusion, among other things. ABC argued there was no legitimate expectation of privacy in the office setting because workers shared small, three-walled cubicles. Conversations could be heard by other employees. The California Supreme Court disagreed with network, "in an office or other workplace to which the general public DOESN'T have unfettered access employees may enjoy a limited, but legitimate expectation their conversations and other interactions will not be secretly videotaped by undercover TV reporters, even though their conversations may not be completely private. ABC had another setback in 2004, motion for summary judgment denied in intrusion case when one its reporters had secretly taped conversations at a workshop given for aspiring actors by casting directors. By paying a fee to attend the workshop, the performers got to meet and talk with casting directors, the people who play an important role in employing actors who appear in movies and on TV. The workshops were a controversial issue in CA, and network did a segment for it on a "20/20" broadcast. The reporter taped not only actual presentations during workshop but private conversations among performers during break. Some of the performers sued. In CA, all parties must agree to a recording of a conversation unless it takes place at a public gathering. ABC asked the case be dismissed, claiming the conversations took place in public places. The US District Court ruled even though some of their conversations could have been overheard by other students, the plaintiffs still had a reasonable expectation of privacy. Could not have expected as they talked among themselves in the corners or against the walls of classrooms, much less in the restrooms, that a reporter was covertly recording their conversations. This wasn't a public place! Another CA ruling demonstrates how carefully judges will sometimes look at a situation to judge the extent of potential intrusion. A car containing four members of the Shulman family accidentally left I-10 tumbled down an embankment and came to rest upside down in a drainage ditch. Rescue apparatus arrived at scene, including Mercy Air helicopter with medic and flight nurse. Also on board was camera operator who worked for a TV production company. The photographer was accumulating footage for a TV program called "On Scene: Emergency Response" Nurse Carnahan was wearing a mic that supplied the audio stream for the video. As rescue workers cut R. Shulman out of the car, she was comforted by C. The conversation was recorded as the photographer videotaped the rescue. S was placed in the rescue helicopter, and during flight to hospital more video and audio material gathered. S, who ended up paraplegic because of her injuries, sued for IOP, both intrusion and publication of private facts. The CA court dismissed the private facts claim, noting there was tremendous public interest in what happened in this case. But she had no reasonable expectation of privacy while she was being removed from the vehicle, which was located along a public highway. Does the use of a zoom lens to photograph or videotape a person in his own backyard constitute an intrusion into seclusion when the images are captured from a neighbor's home? NOT NECESSARILY. All depends on the specific facts and context of the case, as 2011 federal court ruling in Webb v. CBS Broadcasting Inc illustrates. In Webb, reporter and videographer for CBS news obtained permission from neighbor of the plaintiffs (Webb's) to bring a video camera, which had a zoom lens, into the neighbor's home and to set up the camera in front of one of the kitchen windows on the first floor. From that vantage point, CBS journalists were able to video footage of the plaintiffs near their swimming pool in their backyard. In holding the plaintiffs didn't have a reasonable expectation to privacy, the court wrote "the backyard is visible to the naked eye from the first-floor windows of the neighbor's house" and that "when objects are in plain view, there is no legitimate expectation of privacy" The court also emphasized the neighbor's house was on a hill about 3-5 feet higher than plaintiff's backyard (thus allowing journalists to peer down into the backyard) and there was undisputed evidence the videotape made from the neighbor's kitchen window could have been made from the public sidewalk or public street because the backyard was visible to the public from many vantage points. The Webbs lost their case because they simply were not in a place that a reasonable person would have believed to be secluded. An IL appellate court in 2014 reached same conclusion in separate lawsuit for intrusion from the exact same location in Webb but involving a different plaintiff. "Though the pool was surrounded by a six-foot fence, the lot lay at the bottom of an incline, which made the property between 3-5 feet lower than surrounding area" "Given the layout of the property and surrounding area, videotape could have been shot from public sidewalk or grassy area behind property" An important point: Whether a reasonable expectation of privacy requires a highly fact specific analysis! Courts will almost always reject the argument photographing someone in a truly public place is an IOP. But sometimes there is a fine line between taking a photograph and harassing the subject of the photograph. Over 40 years ago, courts barred photographer from coming within 10 yards of Jacqueline Kennedy Onassis and her children because he was harassing the family with his incessant picture taking. 1996, court issued in Penn., similar order to protect family in state from intense scrutiny of reporters trying to prepare a story for the TV program "Inside Story." Paparazzi have been a problem in CA and NY for many years. These aggressive photographers dog celebrities in hopes of getting a picture they can sell to the growing number of tabloid newspapers and magazines that focus on celebrities and the entertainment business. California has been especially aggressive in dealing with the paparazzi. A state statute creates tort liability for physical and 'constructive' invasions of privacy through photographing, videotaping or recording a person engaged 'in a private, personal, or familial activity.' While this law limits so-called in your face photography, it also sharply limits the use of visual (telephoto lens) or auditory enhancement devices (microphones that can pick up conversations from great distances). The law TRIPLES the damages celebrities can win from paparazzi if they are assaulted while the photos are being taken and denies the photographers any profits from the sale of pictures taken during the photographic melees. Statute toughened in 2010 when it abolished immunity for individuals or companies that publish the 'constructive IOP' pictures taken by photographers. Penalties can be significant! Damages can be levied against media outlets that initially purchase photos or recordings they know were taken in violation of the statute. 2012, new part of California's anti-paparazzi statute received its first judicial challenge! Case centered on a photographer named Raef who allegedly drove more than 80 miles per hour and cut across multiple lanes of traffic on an LA freeway chasing a vehicle Bieber was driving. Raef was the first person charged under California Vehicle Code Section 40008(a), which took effect in 2011 and makes it a misdemeanor punishable of up to $2.5k and six months in jail to violate various California safe driving laws with 'intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose' Raef argued this provision, which increases punishment for reckless driving committed with the intent to capture an image for a commercial purpose, was unconstitutional because he claimed it narrowly targeted only members of the press. He made this argument because laws that single out the press, or certain members of it, for special treatment are subject to heightened scrutiny by the courts. In 2015, however, California appellate court upheld provision in Raef v. Appellate Division of Superior Court. Appellate court found the Vehicle Code Section was a law of general application that doesn't target speech or single out the press for special treatment. In reaching the conclusion, court reasoned on its face it is not limited to paparazzi chasing celebrities or reporters gathering news. Instead, it targets 'any person' who commits an enumerated traffic offense with intent to capture image, sound, or impression of another person for commercial purpose. The law was constitutional because it didn't discriminate against the news media. 2016, California Supreme Court declined to review case. 2015, California's anti-paparazzi statute was amended and expanded once more - dealing with drones that might record images of celebrities flying above their property. Statute now provides for civil liability when a person knowingly enters 'onto the land or into the airspace above the land of another person without their permission' Adopted after celebrities claimed to have been 'droned' by the paparazzi.

Types of documents... g. Juror Records -Access to information about jurors has become sensitive issue during last 15/20 years -As activity in criminal courts has increased and fewer Americans seem willing to serve a jurors, judges have become increasingly p... of those citizens who are willing to perform this public duty. In most trials, the n... and a... of jurors are regarded as p... records, ... to inspection by the press and public. BUT IN SOME CASES, judges have r... to r... the n... and a... of the jurors, even after the t... has concluded! Example: -U.S. District Court in IL r... to r... the n... of the jurors in the trial of former Governor Blagojevich for lying to federal agents until a... the t... was completed and a v... rendered -The judge said he had promised jurors he would keep their i... confidential and was worried about h... by the media and others because of the notoriety of the defendant. He said jurors receiving such contact might be distracted, disturbed or intimidated and be unable to do their duty. He added he believed alternatives to the denial of access were impractical and burdensome The appellate courts seem to be of t... m... on whether such denial of access is p... under the ... law or the ...n! -1st, 3rd and 4th Circuits, MI Court of Appeals, PA Supreme Court all ruled there is at least a q... r... of a... to these records Example: 1st Circuit ruled that while courts can make e... to the rule that jurors n... should be released, the trial court in the case "did not make any 'p...d findings' regarding such e... c... that were peculiar to the case" [Press-Enterprise Test] The q... usually revolve around w... and h... the information is disseminated! Example: ND Supreme Court ruled juror information was a p... r..., even if the trial court promised jurors the information they had provided on extensive jury questionnaires would be protected! However... -5th Circuit, OR Supreme Court, MA Supreme Judicial Court ruled juror information is not n... a...! Example: -Federal district court ruled allowing the public to know the n... and h... t... of jurors but not their h... a... struck the "proper balance" between right of access and right to privacy -Coalition of media organizations moved for access to the n... of jurors who had convicted Cosby of aggravated sexual assault. The court recognized the press and public have a c... r... of a... to the information not o... by the ...' right to p.... The court, however, declined to i... the jurors until three weeks after the verdict was announced to "provide a cooling off period and permit jurors to return to their private lives" h. Out-of-Court Settlements There are some areas in which public and press access to court documents is r... d...! -C... l... often end with an out-of-court settlement; both parties agree to settlement without completing the trial! -In past cases that were settled out of court, the t... and n... of the settlement were shrouded under c... orders! Oftentimes judges play an important role in generating such settlements -These settlement agreements have traditional been considered a p... matter between the parties in the lawsuit; today more and more of these agreements contain provisions that the t... of the settlement are to remain c...! -Defendants often seek c... to avoid d... of se... or potentially d... information; plaintiffs are willing to agree to c... to obtain a higher amount of ... in the settlement! Therefore, the s... of out-of-court settlements has become somewhat c...! At first glance there seems little difficulty with such s... agreements; these are p... agreements between p... parties -But the p... i... can he harmed in some instances! Examples: The c... settlement of a malpractice suit against a doctor will provide compensation to the injured patient. But such a settlement d... o... patients knowledge of the doctor's wrongdoing -If an auto manufacturer obtains a c... settlement with a customer who was injured because of a faulty part in the car, o... owners of the same vehicle may not be wa... of the da...! Journalists are increasingly seeking a... to such s... agreements! -Their quest for information is somewhat compromised by the fact newspapers/b-cast stations sometimes will seek the c... settlement of a l... or i... of p... action; most judges haven't been r... to the arguments the press/public should a... to s... agreements -Many jurists believe the s... clause in these agreements e... the settlement of lawsuits, and with courts in America crowded as they are, judges favor anything that will r... their caseload ... Circuit (1996) ruled there is a right of public a... to s... settlement agreements, the first important court to make such a ruling! Since then a few other courts have ordered that such agreements be open for inspection -As a rule though, these agreements remain beyond the reach of even ... ... arguments! Reporters who expose the terms of such s... settlements can face s... co...! Example: A court clerk mistakenly gave reporter Mitchell a file containing the details of a s... settlement between Conoco Inc. and residents of a mobile home park who alleged Conoco had contaminated their water supply. When the Morning Star published a story about the settlement, the court held both the reporter and newspaper in c... They were jointly fined $500k i. Protective Court Orders Other documents normally c... to in... are records provided by litigants to the o... p... in a lawsuit covered by a protective court order! -During the d... process, both sides in a legal dispute are permitted to explore the records and witnesses held by the o... p... -The court can assist in this process by first co... d... of the information, and second, by issuing an order forbidding parties from revealing the information to o... p... Supreme Court ruled (1984) protective orders are not the classic kind of p... r... that requires exacting ... ... scrutiny! -This decision has given b... l...y for judges to routinely issue such orders. And most courts follow this Supreme Court precedent in ruling on whether the c... of materials under protective orders are a...! j. Discovery Documents -Access to c... discovery is sometimes an area of controversy! Journalists not only have sought to be p... during the actual taking of deposition, but have also tried to obtain access to deposition transcripts and documents obtained as part of discovery Example: -CT Supreme Court issued a detailed ruling involving s... documents filed in actions alleging sexual abuse by Roman Catholic clergymen. The Court ruled there was a p... right of p... a... to "judicial documents" or "any document filed that a court reasonably may rely on in support of its adjudicatory function" Though the cases had been settled and withdrawn in 2001, in 2002 newspapers filed motions seeking permission to intervene in the cases and an order vacating the s... of the documents. -Though the court recognized there was a s... as to whether discovery-related documents should be considered p..., the court concluded because "discovery proceedings can have a s... i... on the eventual r... of the disputes" those documents should be public to advance the p... i... in judicial m... -Lawsuit brought against Bridgestone/Firestone, Inc. for the death of a football player from WVU, media companies sued to unseal discovery documents -11th Circuit ruled under the "g... c..." standard, Bridgestone/Firestone's interest in keeping trade secrets confidential had to be balanced against the press' contention that disclosure would serve the public's interest in health and safety The "g... c..." standard is based on the Federal Rules of Civil Procedure, which requires a party in a c... lawsuit to show g... c... as to why documents should be s..., and similar provisions in state rules of civil procedure -A court r... to give access to the discovery documents in a defamation case involving allegations of sexual misconduct against Epstein. After the underlying case was settled, Miami Herald and others requested the court u... documents produced during discovery The court d... the request, ruling the records ... subject to a right of access because they were not re... up... to render a de... in the case Courts have traditionally been r... to make records obtained through the C... DISCOVERY PROCESS open to the media and public! -The c... discovery process involves the exchange of materials the p... will use to secure a c... and material the d... will use to achieve an ac... -In c... cases, p... aren't required by law to turn over all evidence gathered in a c... investigation to the d..., though p... must share with the d... evidence that might absolve the d... -This material may/not eventually be submitted as evidence at trial! k. National Security The nation's fight against terrorism and terrorist acts has resulted in many instances of c... court records! -NYT reported Bush administration was employing extraordinary s... in defending civil lawsuits filed against the NSA because of its h... c... domestic surveillance program "Plaintiffs and judges' clerks cannot see its s... filings. Judges have to make appointments to review them and are not allowed to keep copies" -The case of accused terrorist Moussaoui example of the a... difficulties presented by such cases -The government not only sought to d... access to certain portions of the p..., it also successfully convinced the judge to s... most of the court records. Judge s... many of the proceedings when the government contented M could use the material he placed in the record to secretly communicate with co-conspirators or sympathizers with coded messages. -M, who was ostensibly defending himself, was filing great numbers of highly inflammatory pleadings. Judge B modified her order a month later and said materials would be u... 10 days after they were filed, giving the government time to challenge the release of individual documents -Several news organizations went to court to try to gain a... to these materials. The following day the judge announced she had serious doubts whether the government could prosecute M in a civilian court "under the shroud of s... it seeks to proceed" The case might have to be moved to a m... t... in which s... would be more readily tolerated -M pled guilty -More recently, disputes over a... to national security information have centered on information of Guantanamo detainees -Dhiab v. Trump, news organizations sought to have videos of force feedings u... The case involved a hunger-striking detainee who challenged the government's force-feeding program. In support of his motion for an injunction against the forced feedings, the detainee submitted two dozen videos of his forced-cell extractions and forced feeding U.S. Circuit Court of Appeals for D.C. upheld government's right to keep the videos s...

Juror Records Access to information about jurors has become a sensitive issue during the past 15-20 years. As activity in the criminal courts has increased and fewer Americans seem willing to serve as jurors, judges have become increasingly protective of those citizens who are willing to perform this important public duty. In most trials, the names and addresses of jurors are regarded as public records, open to inspection by the press and the public. But in some cases, judges have refused to reveal the names and addresses of the jurors, even after the trial has concluded! Example: 2010, U.S. District Court in Illinois refused to release the names of the jurors in the trial of former IL Governor Blagojevich for lying to federal agents until after the trial was completed and a verdict rendered. The judge said he had promised jurors he would keep their identities confidential and was worried about harassment of the members of the panel by the media and others because of the notoriety of the defendant. He said jurors receiving such contact might be distracted, disturbed or intimidated and be unable to do their duty. He added he believed alternatives to the denial of access were impractical and burdensome The appellate courts seem to be of two minds on whether such denial of access is permitted under the common law or the Constitution! 3rd and 4th Circuits, Michigan Court of Appeals, and the Pennsylvania Supreme Court have all ruled there is at least a qualified right of access to these records. Example: 2019, 1st Circuit agreed. The court ruled that while courts can make exceptions to the rule that jurors names should be released, the trial court in the case "did not make any 'particularized findings' regarding such exceptional circumstances that were peculiar to the case" The qualifications usually revolve around when and how the information is disseminated! Example: North Dakota Supreme Court ruled juror information was a public record, even if the trial court promised jurors the information they had provided on extensive jury questionnaires would be protected! However, 5th Circuit, Oregon Supreme Court and Mass. Supreme Judicial Court have ruled juror information is not necessarily accessible. Example: 2017, federal district court ruled allowing the public to know the names and hometowns of jurors but not their home addresses struck the "proper balance" between right of access and right to privacy Example: 2018, coalition of media organizations moved for access to the names of jurors who had convicted Cosby of aggravated sexual assault. The court recognized the press and public have a constitutional right of access to the information not outweighed by the jurors' right to privacy. The court, however, declined to identify the jurors until three weeks after the verdict was announced to "provide a cooling off period and permit jurors to return to their private lives" Box: No right of access to judicial records? 2018, in an unprecedented decision, CO Supreme Court ruled though there was a right of access to judicial proceedings under both the U.S. Constitution and the CO Constitution, there was no corresponding right of access to judicial records, including motions, transcripts, and orders. In People v. Owen, the Colorado Independent moved to unseal records related to a murder defendant's motion to disqualify the prosecutor for withholding evidence in the case. The records included motion papers, a hearing manuscript and a court order. A trial court denied the CO Independent's motion to gain access to the records. On appeal, the CO Supreme Court wrote "there was on support in U.S. Supreme Court jurisprudence for the contention the 1A provides the public with a constitutional right of access to any and all court records in cases involving matters of public concern" Longtime media lawyer Zansberg filed a petition of certiorari with the U.S. Supreme Court on behalf of the Colorado Independent. Though Z argued the CO Supreme Court was "the only court in the nation that has categorically rejected a 1A right to [judicial] records" he also noted all cert petitions to the U.S. Supreme Court are long shots. "Any case that seeks U.S. Supreme Court review faces extremely uphill odds" Despite Z's argument the decision went against all others, the U.S. Supreme Court declined to hear the case Juror Records Access to information about jurors has become a sensitive issue during the past 15-20 years. As activity in the criminal courts has increased and fewer Americans seem willing to serve as jurors, judges have become increasingly protective of those citizens who are willing to perform this important public duty. In most trials, the names and addresses of jurors are regarded as public records, open to inspection by the press and the public. But in some cases, judges have refused to reveal the names and addresses of the jurors, even after the trial has concluded! Example: 2010, U.S. District Court in Illinois refused to release the names of the jurors in the trial of former IL Governor Blagojevich for lying to federal agents until after the trial was completed and a verdict rendered. The judge said he had promised jurors he would keep their identities confidential and was worried about harassment of the members of the panel by the media and others because of the notoriety of the defendant. He said jurors receiving such contact might be distracted, disturbed or intimidated and be unable to do their duty. He added he believed alternatives to the denial of access were impractical and burdensome The appellate courts seem to be of two minds on whether such denial of access is permitted under the common law or the Constitution! 3rd and 4th Circuits, Michigan Court of Appeals, and the Pennsylvania Supreme Court have all ruled there is at least a qualified right of access to these records. Example: 2019, 1st Circuit agreed. The court ruled that while courts can make exceptions to the rule that jurors names should be released, the trial court in the case "did not make any 'particularized findings' regarding such exceptional circumstances that were peculiar to the case" The qualifications usually revolve around when and how the information is disseminated! Example: North Dakota Supreme Court ruled juror information was a public record, even if the trial court promised jurors the information they had provided on extensive jury questionnaires would be protected! However, 5th Circuit, Oregon Supreme Court and Mass. Supreme Judicial Court have ruled juror information is not necessarily accessible. Example: 2017, federal district court ruled allowing the public to know the names and hometowns of jurors but not their home addresses struck the "proper balance" between right of access and right to privacy Example: 2018, coalition of media organizations moved for access to the names of jurors who had convicted Cosby of aggravated sexual assault. The court recognized the press and public have a constitutional right of access to the information not outweighed by the jurors' right to privacy. The court, however, declined to identify the jurors until three weeks after the verdict was announced to "provide a cooling off period and permit jurors to return to their private lives" Out-of-Court Settlements There are some areas in which public and press access to court documents is routinely denied! Civil lawsuits often end with an out-of-court settlement; both parties agree to a settlement without completing the trial. In the past, cases involving defective tires on Ford Explorers, the dangers of silicone breast implants, exploding cigarette lighters and defective TV receivers were all settled out of court, and the terms and nature of the settlements were shrouded under confidentiality orders. Oftentimes judges play an important role in generating such settlements. These settlement agreements have traditionally been considered a private matter between the parties in the lawsuit. Today more and more of these agreements contain provisions that the terms of the settlement are to remain confidential. Defendants often seek confidentiality to avoid the disclosure of sensitive or potentially damaging information. Plaintiffs are willing to agree to confidentiality to obtain a higher amount of money in the settlement! Therefore, the sealing of out-of-court settlements has become somewhat commonplace. At first glance there seems little difficulty with such sealed agreements; after all, these are private agreements between private parties. But the public interest can be harmed in some instances!!! Example: The confidential settlement of a malpractice suit against a doctor will provide compensation to the injured patient. But such a settlement denies other patients knowledge of the doctor's wrongdoing. If an auto manufacturer obtains a confidential settlement with a customer who was injured because of a faulty part in the car, other owners of the same vehicle may not be warned of the danger! Journalists are increasingly seeking access to such sealed agreements! Their quest for information is somewhat compromised by the fact newspapers and b-casting stations sometimes will seek the confidential settlement of a libel or IOP action. Most judges have not been receptive to the arguments the press and public should have access to sealed agreements. Many jurists believe the secrecy clause in these agreements encourages the settlement of lawsuits, and with courts in America crowded as they are, judges favor anything that will reduce their caseload! Example: 1986, 3rd Circuit ruled there is a right of public access to sealed settlement agreements, the first important court to make such a ruling! Since then a few other courts have ordered that such agreements be open for inspection! As a rule, however, these agreements remain beyond the reach of even 1A arguments! Reporters who expose the terms of such secret settlements can face severe consequences! Example: A court clerk mistakenly gave reporter Mitchell a file containing the details of a secret settlement between Conoco Inc. and residents of a mobile home park who alleged Conoco had contaminated their water supply. When the Wilmington Morning Star published a story about the settlement, the court held both the reporter and newspaper in contempt. They were jointly fined $500k. Protective Court Orders Other documents normally closed to inspection are records provided by litigants to the opposing party in a lawsuit that are covered by a protective court order. During the discovery process, both sides in a legal dispute are permitted to explore the records and witnesses and other material held by the opposing party. The court can assist in this process by first compelling disclosure of the information, and second, by issuing an order forbidding the parties from revealing the information to outside parties. Example: 1984, Supreme Court ruled protective orders like this are not the classic kind of prior restraint that requires "exacting 1A scrutiny." This decision has given broad leeway for judges to routinely issue such orders. And most courts follow this Supreme Court precedent in ruling on whether the contents of materials under protective orders are accessible. Discovery Documents Access to civil discovery is sometimes an area of controversy. Journalists not only have sought to be present during the actual taking of depositions but also have tried to obtain access to deposition transcripts and documents obtained as part of discovery. Example: 2009, CT Supreme Court issued a detailed ruling involving sealed documents filed in 23 actions alleging sexual abuse by Roman Catholic clergymen. The Court ruled there was a presumptive right of public access to "judicial documents" or "any document filed that a court reasonably may rely on in support of its adjudicatory function" Though the cases had been settled and withdrawn in 2001, in 2002 four newspapers filed motions seeking permission to intervene in the cases and an order vacating the sealing of the documents. Though the court recognized there was a split as to whether discovery-related documents should be considered public, the court concluded because "discovery proceedings can have a significant impact on the eventual resolution of the disputes" those documents should be public to advance the public interest in judicial monitoring Example: 2001 lawsuit brought against Bridgestone/Firestone, Inc. for the death of an 18-year-old football player from WVU, four media companies sued to unseal nine discovery documents and 10 pages excerpted from legal briefs. The 11th Circuit ruled under the "good cause" standard, Bridgestone/Firestone's interest in keeping trade secrets confidential had to be balanced against the press' contention that disclosure would serve the public's interest in health and safety. The "good cause" standard is based on Rule 26(c) of the Federal Rules of Civil Procedure, which requires a party in a civil lawsuit to show good cause as to why documents should be sealed, and similar provisions in state rules of civil procedure Example: 2018, a court refused to give access to the discovery documents in a defamation case involving allegations of sexual misconduct against financier Epstein, who later died while in custody. After the underlying case was settled, Miami Herald and others requested the court unseal documents produced during discovery. The court denied the request, ruling the records weren't subject to a right of access because they were not relied upon to render a decision in the case Courts have traditionally been reluctant to make records obtained through the criminal discovery process open to the media or the public. The criminal discovery process involves the exchange of materials the prosecution will use to secure a conviction and material the defense will use to achieve an acquittal. In criminal cases, prosecutors aren't required by law to turn over all evidence gathered in a criminal investigation to the defense, though prosecutors must share with the defense evidence that may exonerate (absolve the defendant from blame) the defendant. This material may or may not eventually be submitted as evidence at trial National Security The nation's fight against terrorism and terrorist acts has resulted in many instances of closed court records Example: 2007, New York Times reported the Bush administration was employing extraordinary secrecy in defending civil lawsuits filed against the National Security Agency because of its highly classified domestic surveillance program. "Plaintiffs and judges' clerks cannot see its secret filings. Judges have to make appointments to review them and are not allowed to keep copies," newspaper reported The case of accused terrorist Moussaoui provides an example of the access difficulties presented by such cases. The government not only sought to deny access to certain portions of the proceedings, it also successfully convinced the judge to seal most of the court records. The question focused on whether M, a French citizen, could have access to captured Al Qaeda witnesses who he contended would help him prove his innocence. In 08/2002, Judge Brinkema sealed many of the proceedings when the government contented M could use the material he placed in the record to secretly communicate with co-conspirators or sympathizers with coded messages. At the time, M, who was ostensibly defending himself, was filing great numbers of highly inflammatory pleadings. Judge B modified her order a month later and said materials would be unsealed 10 days after they were filed, giving the government time to challenge the release of individual documents. In 04/2003, several news organizations went to court to try to gain access to these materials. The following day the judge announced she had serious doubts whether the government could actually prosecute M in a civilian court "under the shroud of secrecy under which it seeks to proceed" The case, then, might have to be moved to a military tribunal in which secrecy would be more readily tolerated. M abruptly pleaded guilty in 04/2005 to charges of conspiracy and the access issues became moot More recently, disputes over access to national security information have centered on information related to Guantanamo detainees. Dhiab v. Trump, 16 news organizations sought to have videos of force feedings unsealed. The case involved a hunger-striking detainee who challenged the government's force-feeding program. In support of his motion for an injunction against the forced feedings, the detainee submitted two dozen videos of his forced-cell extractions and forced feeding. 2017, U.S. Circuit Court of Appeals for D.C. upheld government's right to keep the videos sealed

Open and Closed Trials With guidance from the Supreme Court, lower courts have applied rules in the Press-Enterprise test to a wide variety of hearings and documents! Most cases expanding open-access provisions have resulted from newspapers and b-cast stations challenging court rulings to close the proceedings But fewer and fewer a... c... are occurring today because the p... isn't raising the issue! 1. Party because of the small, medium, and even some large media organizations s... f... and not having the resources to mount e... litigation 2. Some large companies that have bought up hundreds of family-owned media operations in the past three decades as b... v... don't share the j... commitment to o... g... Judges have a difficult time closing off access to t... c... t...! Richmonds Newspapers v. Virginia (1980) -Decision...? (Not 9 justices) -Supreme Court unambiguously spoke about such hearings (t... c... t...) -1976 trial in VA, John Stevenson was indicted for murder. He was tried and convicted of second-degree murder, but his conviction was ... A second trial ended in a m... when a juror asked to be excused in the midst of the hearing. A third trial also resulted in a m... because a prospective juror told other prospective jurors about his earlier conviction on the same charges. This exchange wasn't revealed until after the trial had started -As proceedings were about to begin for the fourth time, the defense asked the trial be closed. The prosecution didn't object, and the court closed the trial. Richmond Newspapers, Inc. protested the closure to no avail. An appeal came before the U.S. Supreme Court Chief Justice Burger wrote the opinion, "through its evolution the trial has been o... to all who cared to observe" -A p... of o... hearings is the very nature of a c... t... under our system of justice. Though there is no specific p... in the ... of ... or the ...n to support the o... t..., the expressly guaranteed freedoms in the ... ... share a common core purpose of assuring freedom of communication on matters related to the f...g of g...!" -In guaranteeing freedoms such as those of s... and p..., the ... ... can be read as protecting the right of everyone to a... t... so as to give meaning to those guarantees! -The ... ... prohibits the government from summarily c... c... doors, which had been o... to the public at the time the amendment was adopted! But the ... ... is not an a... bar to c... trials! In some circumstances, which Burger declined to define, a trial judge could bar the public and press from a t... in the interest of the f... a... of j...! Such circumstances would be u... (based on the tone and language of Burger) ... Lower courts followed suit and found there is a right of access to c... t...; Some courts have based this right of access on the ... ... (following the Supreme Court in Richmond Newspapers), others have found there is a ... law or ... c... basis for access to c... proceedings! The Supreme Court has not yet ruled that c... t... are open to the press and public, but lower federal and state courts have made such rulings! Publicker Industries v. Cohen (1984) -3rd Circuit ruled c... p... are p... o... to the public and press! -"A survey of authorities identifies features of the c... justice system as many of those of the c... justice system on which the Supreme Court relied in holding the ... ... guarantees to the public and press the right of access to c... trials" -This right is also not a..., but absent a clear showing that closing the trial serves an important g... i... and that closing a trial is the o... w... to serve the i..., the c... p... should be open! ... in 1999 became the first state Supreme Court to make the same ruling - public and press have a c... right of access to a c... p... Similar to c... trials, some courts have based this right of access on the ... ...; others have found there is a ... law or ... c... basis for access to c... p...! Frequently neither party in a c... suit will fight an order to close a courtroom proceeding or to seal court records and it is left to the ... to intervene -Supreme Court of SD ruled a trial court judge improperly issued a gag order and an order closing a c... trial -The case involved a dispute over a family-owned drive-thru wildlife park. The underlying action involved a c... suit among family-member shareholders concerning the management and control of the business. The shareholders asked a judge to determine its value so one faction could buy out the other -Before trial, the two parties submitted a motion to close the courtroom when financial information and testimony was to be presented to protect "confidential business information." The judge in the case imposed a gag order on both parties, closed the courtroom and sealed the court records -While both sides agreed to the motion, the Rapid City Journal, AP, and SD Newspaper Association brought an action to remove the gag order and open the courtroom and documents. The SD Supreme Court found a number of problems with the procedure and decision reached by the trial court judge: 1. The court noted the judge didn't correctly apply the ... ... or ...-law p... of o... required 2. He did not require either party to show closure was necessary "to preserve hi... v..." 3. The judge didn't articulate sp... enough fi... to allow an appellate court the ability to determine whether closure was proper 4. The court ruled the order was not n... t... The court also found the judge didn't have the authority to issue a gag order in the case! E... to this rule that trials are open to the press and the public! 1. Juvenile Hearings Traditionally, judicial hearings involving juveniles have been ... to the public and press! -Protecting both the v... and a... is common rationale that supports this policy. V... often juveniles too, and the attempt to r... a juvenile offender is an underlying tenet of juvenile justice. R... efforts may be more difficult if the community is informed about the offender However, policies regarding the juvenile justice process have changed over the last 2 decades Access to these proceedings isn't c... but not u...! Couple of reasons for this: 1. Many states have c... juvenile proceedings into two groups: a. Those in which a juvenile is c... with a c... b. Those in which the juvenile is the s... of a h... related to child abuse, parental neglect, family reconciliation, dependency, or some similar concern The law in many states that have instituted this two-tier system has made the ... category of hearing (a c... hearing) p... o... to the press and public and the ... kind of hearing p... c... But at least a dozen states now regard the ... kind of hearing p... o... too! In many instances, juvenile court judges allow reporters to attend these hearings to get a sense of the p... the c... is dealing, but grant access only if the journalists agree to refrain from i... the parties in any story published/aired 2. Juvenile crime has taken on far more s... p... in past quarter century -Whereas petty theft and assault were about the only charge placed against juveniles 50 years ago, robbery, rape, even murder charges not uncommon today! -P... c... has forced i... s... of the juvenile justice process Example -15-year-old committed a playground shooting originally brought before a juvenile court before being transferred to circuit court. The circuit court charged him in a closed arraignment and sealed all court records while it ruled on the defendant's motion objecting to the transfer. Multiple media organizations filed for an order to unseal the records and provide recording of the arraignment. The KY Court of Appeals granted the order, determining though juvenile cases didn't carry the same p... of o... that attaches to other court proceedings, the media organizations had sufficiently demonstrated im... and ir... h...! Despite this trend toward more access to juvenile hearings, the law is i... from ... to ... and c... to c... -OH Supreme Court ruled in that state, juvenile proceedings are neither p... o... nor c... The decision must be made by the court on a c...-by-c... basis, considering whether access to the proceeding could harm the ..., whether this harm outweighs the benefits of p... a..., and whether there are r... a... to closure -3rd Circuit ruled the f... J... D... Act, a statute that governs the treatment of those under the age of 18 who are charged with violating the law, doesn't require that federal juvenile proceedings be o... or c... Rather, courts must make rulings regarding this issue on a c...-by-c... basis, balancing the interest of all parties involved! Journalists and others concerned with reporting on juvenile proceedings should acquaint themselves with the law in their ... or c... d...! Judges within a ... may have varying interpretations of what is often ambiguous law. But for now and the foreseeable future, juvenile hearings remain an e... to the rule that c... t... are normally ... to the press and public 2. Victim and Witness Protection The Supreme Court has ruled it is p... for a state to attempt to protect the v... of a s... a... by permitting the c... of a trial during the ...'s testimony or to protect the i... of w... such as und... ... o...! Laws exist in many states that provide for such c...! But these laws p... the court only to c... the proceeding during the testimony; they cannot r... that such a c... to take place Example: -A MA statute r... closure of a trial during the testimony of a juvenile s... o... v... The Supreme Court ruled the law was ...! -Justice Brennan agreed the state has a strong interest in protecting the v... in this kind of case. The law was nevertheless flawed because it r... closure of the proceeding. Judges may still close trials, but they must provide a r... to close the trial and make sure the closure is n... t..., or as b... as possible! -U.S. District Court in ID closed the courtroom during the testimony of a 12-year-old during a capital sentencing hearing regarding her suffering at the hands of a convicted sex offender and murderer. The judge ruled there was a "c... i..." in protecting the well-being of the surviving v... from embarrassment and psychological harm that outweighed the media's ... ... right of access to that portion of the criminal judicial proceeding. Transcripts of the girl's testimony were provided to the press and public later Note how it is narrowly tailored + there is a compelling reason to close the trial (versus the first example) 3. Traditional Military Courts Press and public access to military courts is generally ... under both m... law and the ... ...! But there are exceptions! Example: When c... information is introduced at trial, closure will be p... if the order is n... t... - no more of the hearing is closed than is n... to protect the g...'s i... barring access to the c... material! But according to a report by the Reporters Committee for Freedom of the Press, public and press access to and information about p... h... and c...-mar... of men and women in uniform has been r... D... for MANY YEARS -The military has r... in many cases to provide any information about the p... h..., d... to disclose c...-mar... schedules and docketing information for both and even withheld basic details like the defendant's name and criminal charge at issue! Example: -The case of Sergeant Bergdahl raised issues of access concerning c...-mar... While stationed in Afghanistan, B wandered off base and was captured by Taliban affiliates, who held him for five years. In 2015, B was charged with desertion and misbehavior before the enemy -Though the judge in his p...-c...-mar... h... initially d... media requests for access to the proceedings' unclassified information, the judge in his actual trial by c...-mar... allowed the press to bring its own stenographer to hearings and ordered that filings be made publicly accessible to an online docket Since the fashioning of the Press-Enterprise test in the 1980s, the courts have ruled both ... and ... trials must generally remain open!

Open and Closed Trials With guidance from the Supreme Court, lower courts have applied the rules in the Press-Enterprise test to a wide variety of hearings and documents! Most of the cases expanding the open-access provisions have resulted from newspapers and b-casting stations challenging court rulings to close the proceedings. But fewer and fewer access challenges are occurring today because the press isn't raising the issue! Why? Partly because many of the small, medium and even some large media organizations are suffering financially and don't have the resources to mount expensive litigation. "Many in the press have shifted their emphasis from pursuing 1A principles to survival. And some large companies that have bought up hundreds of family-owned media operations in the past three decades as business ventures don't share the journalistic commitment to open government (analyst)." Judges have a difficult time closing off access to traditional criminal trials! The Supreme Court spoke unambiguously (clearly) about such hearings in the 1980 ruling Richmond Newspapers v. Virginia (7-1). The case stemmed from a state court ruling in a VA trial. In 03/1976, John Stevenson was indicted for murder. He was tried and convicted of second-degree murder, but his conviction was reversed. A second trial ended in a mistrial when a juror asked to be excused in the midst of the hearing. A third trial also resulted in a mistrial because a prospective juror told other prospective jurors about Stevenson's earlier conviction on the same charges. This exchange wasn't revealed until after the trial had started. As proceedings were about to begin for the fourth time in late 1978, the defense asked the trial be closed. The prosecution didn't object, and the court closed the trial. Richmond Newspapers, Inc. protested the closure to no avail. An appeal came before the U.S. Supreme Court Chief Justice Burger wrote the court's opinion, noting "through its evolution the trial has been open to all who cared to observe." A presumption of open hearings is the very nature of a criminal trial under our system of justice, the chief justice added. Though there is no specific provision in the Bill of Rights or the Constitution to support the open trial, the expressly guaranteed freedoms in the 1A "share a common core purpose of assuring freedom of communication on matters relating to the functioning of government," Burger wrote. "In guaranteeing freedoms such as those of speech and press the 1A can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees" he added. The First Amendment, then, the chief justice noted, prohibits the government from summarily closing courtroom doors, which had been open to the public at the time that amendment was adopted! But the chief justice refused to see the 1A as an absolute bar to closed trials! Noted in some circumstances, which he explicitly declined to define at the time, a trial judge could bar the public and press from a trial in the interest of the fair administration of justice. But, while the court didn't outline such circumstances, it was clear from both the tone and language of the chief justice's opinion that in his mind such circumstances would indeed by unusual. Justices White, Stevens, Brennan, Marshall, Stewart, and Blackmun all concurred with the chief justice in five separate opinions. All but Stewart went further in guaranteeing access to trials than did Chief Justice Burger. Rehnquist dissented Lower courts have followed suit and found there is a right of access to criminal trials. Some courts have based this right of access on the 1A, following the Supreme Court reasoning in Richmond Newspapers. Other courts found there is a common-law or state constitutional basis for access to CRIMINAL proceedings. The Supreme Court has not yet ruled that civil trials are open to the press and public, but lower federal and state courts have made such rulings! 1984, 3rd Circuit ruled civil proceedings are presumptively open to the public and press. Publicker Industries v. Cohen, lawsuit involving a corporate proxy fight, the court noted "a survey of authorities identifies as features of the civil justice system many of those attributes of the criminal justice system on which the Supreme Court relied in holding the 1A guarantees to the public and to the press the right of access to criminal trials." The right is not absolute, the court said, but absent a clear showing that closing the trial serves an important governmental interest and that closing the trial is the only way to serve this interest, the civil proceeding should be open. 1999, California Supreme Court became the first state Supreme Court to make the same ruling, the press and public have a constitutional right of access to a civil proceeding. Some courts have based this right of access on the 1A, following the Supreme Court's reasoning in Richmond Newspapers. Other courts found there is a common-law or state constitutional basis for access to CIVIL proceedings. Frequently, neither party in a civil suit will fight an order to close a courtroom proceeding or to seal court records and it is left to the media to intervene. 2011, Supreme Court of SD ruled a trial court judge improperly issued a gag order and an order closing a civil trial. The case involved a dispute over "Bear Country," a family-owned 'drive-thru wildlife park featuring North American wildlife.' The underlying action involved a civil suit among Bear County's family-member shareholders concerning the management and control of the business. The shareholders asked a judge to determine BC's value so that one faction could buy out the other. Before trial, the two parties submitted a motion to close the courtroom when financial information and testimony was to be presented to protect "confidential business information." The judge in the case imposed a gag order on both parties, closed the courtroom and sealed the court records. While both sides agreed to the motion, the Rapid City Journal, Associated Press, and SD Newspaper Association brought an action to remove the gag order and open the courtroom and documents. The SD Supreme Court found a number of problems with the procedure and decision reached by the trial court judge. 1. The court noted the judge didn't correctly apply the 1A or common-law presumption of openness required 2. He did not require either party to show closure was necessary "to preserve higher values" 3. The judge didn't articulate specific enough findings to allow an appellate court the ability to determine whether closure was proper 4. The court ruled the order was not narrowly tailored The court also found the judge didn't have the authority to issue a gag order in the case! There are of course exceptions to this rule that trials are open to the press and the public! a. Juvenile Hearings Traditionally, judicial hearings involving juveniles have been closed to the press and public. Protecting both the victim and the accused is the common rationale that support this policy. The victims are often juveniles too, and the attempt to rehabilitate a juvenile offender is an underlying tenet of juvenile justice. Rehabilitation efforts might be much more difficult if the community is informed about the offender However, policies regarding the juvenile justice process have changed over the past two decades! Access to these proceedings is not commonplace, but not unusual either! There are at least a couple of reasons for this: 1. Many states have classified juvenile proceedings into two groups: those in which a juvenile is charged with a crime and those in which the juvenile is the subject of a hearing related to child abuse, parental neglect, family reconciliation, dependency or some other similar concern. The law in many states that have instituted this two-tier system has made the first category of hearing (a criminal hearing) presumptively open to the press and public, and the second kind of hearing (the kind concerned with social problems) presumptively closed. But at least a dozen states now regard this second kind of hearing presumptively open too! In many instances, juvenile court judges allow reporters to attend these hearings to get a sense of the problems with which the court is dealing, but grant access only if the journalists agree to refrain from identifying the parties in any story they publish/broadcast. 2. Juvenile crime has taken on far more serious proportions in the past quarter century, and this is the second reason for increased openness. Whereas petty theft and assault were about the only charge placed against juveniles 50 years ago, robbery, rape, and even murder charges are not uncommon today! Public concern has forced increased scrutiny of the juvenile justice process Example: 2018, 15-year-old who committed a playground shooting was originally brought before a juvenile court before being transferred to circuit court. The circuit court charged him in a closed arraignment and sealed all court records while it ruled on the defendant's motion objecting to the transfer. Multiple media organizations filed for an order to unseal the records and provide recording of the arraignment. The KY Court of Appeals granted the order, determining though juvenile cases didn't carry the same presumption of openness that attaches to other court proceedings, the media organizations had sufficiently demonstrated immediate and irreparable harm! Despite the trend toward more access to juvenile hearings, the law is INCONSISTENT from state to state and case to case: Example: OH Supreme Court ruled in 2006 in that state, juvenile proceedings are neither presumed open nor closed. The decision must be made by the court on a case-by-case basis, considering whether access to the proceeding could harm the child, whether this harm outweighs the benefits of public access, and whether there are reasonable alternatives to closure The 3rd Circuit ruled in 1994 the federal Juvenile Delinquency Act, a statute that governs the treatment of those under the age of 18 who are charged with violating the law, doesn't require that federal juvenile proceedings be open or closed. Rather, courts must make rulings regarding this issue on a case-by-case basis, balancing the interest of all parties involved! Journalists and others concerned with reporting on juvenile proceedings should acquaint themselves with the law in their states or court district! Judges within a state may have varying interpretations of what is often ambiguous law. But for now and the foreseeable future, juvenile hearings remain an EXCEPTION to the rule that criminal trials are normally open to the press and public. b. Victim and Witness Protection The Supreme Court has ruled it is permissible for a state to attempt to protect the victim of a sexual assault by permitting the closing of a trial during the victim's testimony or to protect the identity of witnesses such as undercover police officers! Laws exist in many states that provide for such closure! But these laws permit the court only to close the proceeding during the testimony; they cannot require that such a closure take place. Example: A Mass. statute required closure of a trial during the testimony of a juvenile sex offense victim. The Supreme Court ruled the law was unconstitutional. Justice Brennan agreed the state has a strong interest in protecting the victim in this kind of case. The law was nevertheless flawed, he said, because it required closure of the proceeding. Judges may still close trials, but they must provide a reason to close the trial and make sure the closure is narrowly tailored, or as brief as possible! 2008, U.S. District Court in ID closed the courtroom during the testimony of a 12-year-old during a capital sentencing hearing regarding her suffering at the hands of a convicted sex offender and murderer. The defendant had killed several of the girl's family members, kidnapped her and her brother and then killed her brother. The judge ruled there was a "compelling interest" in protecting the well-being of the surviving victim from embarrassment and psychological harm that outweighed the media's 1A right of access to that portion of the criminal judicial proceeding. Transcripts of the girl's testimony were provided to the press and public later c. Traditional Military Courts Press and public access to military courts is generally open under both military law (Ruled for Court Material 806 [b]) and the 1A. There are exceptions! Example: When classified information is introduced at trial, closure will be permitted if the order is narrowly tailored - no more of the hearing is closed than is necessary to protect the government's interest barring access to the classified material! But according to a report by the Reporters Committee for Freedom of the Press in 2013, public and press access to and information about both pretrial hearings and courts-martial of men and women in unform has been routinely DENIED for years. The military has refused in many cases to provide any information about the pretrial hearing, declined to disclose courts-material schedules and docketing information for both pretrials and courts-martial and even withheld basic details such as the defendant's name and the criminal charge at issue. Example: The case of Sergeant Bergdahl raised issues of access concerning courts-martial. While stationed in Afghanistan in 2009, B wandered off base and was captured by Taliban affiliates, who held him until 2014. In 2015, B was charged with desertion and misbehavior before the enemy. Though the judge in his pre-court-martial hearing initially denied media requests for access to the proceedings' unclassified information, the judge in his actual trial by court-martial allowed the press to bring its own stenographer (transcriber) to hearings and ordered that filings be made publicly accessible to an online docket Summary American courtrooms traditionally have bene open to the press and public, but in the wake of the rejection of restrictive orders as a means to control publicity, some judges attempted to resolve this problem by closing off access to judicial proceedings and records. In the 1980s, the Supreme Court fashioned a legal test (Press-Enterprise test) for judges to use to determine if access to hearing and documents could be limited without violating the 1A. Since that time, courts have ruled that both criminal and civil trials must generally remain open. Exceptions have been granted for closure during the testimony of crime victims and some witnesses, and some juvenile proceedings.

False-Light Invasion of Privacy It is illegal to publicize material that places an individual in a false light if: a. The false light in which the individual was placed would be ... ... to a ... ... AND b) The publisher of the material was ... ... when the publication was made 1. Publication of material must put an individual in a ... ... 2. The false light would be ... ... to a ... ... 3. The publisher of the material was ... ... Fourth tort has engendered the most disputes within the law: What does this have to do with IOP? -Many state courts ... to recognize this variety of IOP (Minnesota Supreme Court, Colorado Supreme Court, Florida Supreme Court - largely coextensive with ... and did not see the need to embrace both torts) -On other hand, Nevada Supreme Court for first time recognized false-light cause of action ("We, like majority of courts, conclude a false-light cause of action is necessary to fully protect privacy interests." Added a majority of courts have found false light and ... are distinct torts) False-light privacy and libel are similar in some ways -Both involve the publication of something ... about the ... -BUT nasty words published about the ... do not have to be strong enough to harm a ... to qualify for false-light action (does not have to show ... has been harmed, only that something false was published and caused them to suffer ... or ...) Generated more than 80 years ago, judges trying to find remedy for plaintiffs who alleged harm but problems did not meet specific requirements of existing privacy law -First false-light case: woman sued when pictured for six seconds selling bread on streets in so-called documentary about NYC - main players in film were actors, so the court ruled the film was .../... not ... despite lack of plot (it sounds like ..., but the courts did not see it this way) Remember journalists can get into legal trouble for ... k... ... from stories! -Tennessee appellate court, noting l... ... is not a defense in false light (the ... may be ... in a false light claim, but the angle [amplifying discrete information or making selective presentations of information] from which they are presented or the ... of certain material ... can result in placing plaintiff in false light) -The key is whether or not the scenario depicted created a ... ..., even if derived from ... statements Three important elements in this tort 1. Plaintiff must prove the specific allegations are ... -Key is whether or not the words that carry the ..., that cause ... or ..., are s... ...! Errors in ... do not matter as much (Eminem example - the ... in the song lyrics was Bailey was a bully, something he admitted - amounted to s... ...) 2. Plaintiff must also prove the ... statements are ... ... to a ... ... 3. The defendant was ... ... in publishing the material When specific allegations are false... (Element #1) -Simple error made by the publisher Fictionalization The purposeful d... of ..., usually for ... purposes -Some of the earliest false-light cases involved radio and TV dramatizations of actual news events (did not know exactly what happened, because real life was boring - scriptwriters often changed these events to increase drama) -TV programming and motion pictures filled with stories that supposedly represent events that actually happened - docudramas - these kinds of productions can pose risk for creators -Simple way to avoid false-light is for a TV or motion picture company to buy the ... to the ... from the ... ... they plan to portray). By signing a s... ..., the ...-... characters forfeit their right to sue if they are unhappy with how they are portrayed -Individuals who refuse to sign such an agreement are simply w... o... of the story (do not e... as far as the video story is concerned) -More production companies try to avoid involving the ... characters in the story and just advertise their productions as being '... on a ... ...' -Was not uncommon years ago for reporters and editors of magazines and some newspapers to dramatize their stories by adding what they suggested was 'r...-... ...' or some additional 'f...' to news reports. This is mostly confined to t... n... or 's... m...' today (photo of real 96-year-old woman to illustrate totally fabricated story of 101-year-old pregnant mail carrier) -If you change the ..., change the ... and do not use ... of ... people! Real names often appear in novels, feature films, TV shows, ads. Oftentimes individuals will sue (normally ...) under appropriation but false-light can result too. In such actions, decision usually rests on whether just the ... was taken or whether the ... was taken too! -Lawrence Botts Jr., ad carried by United Negro College Fund (the name in the ad was simply a John Doe, a g... p... h... for the prototypical underprivileged black youth) The differences between just taking a ... and taking an ... can be subtle but easy to grasp -Writing novel: best friend is a short, chubby nurse named Julia Roberts. Writer has taken Julia Roberts' ... but not her ... -Writing novel: actress who has AIDS is named Julia Roberts, AND she is tall/thin; won an Academy Award; married to cinematographer Moder and so on. This is taking the ... as well as the ... How many characteristics must be the same before plaintiffs can claim their ... was taken and they were placed in a false light? Courts decide this on a ...-by-... basis Novels and films often carry a ...: "This is a work of fiction. All the characters and events portrayed are fictitious. Any resemblance to real people and events is purely coincidental." -Will this ... ward off a false-light suit...? (You ... escape liability for committing a legal wrong by announcing you are not liable) -The ... that a book or film is a work of fiction and characters are fictitious ... prevent a successful privacy suit if author has obviously a... someone's ... and put them in a false light Lovingood v. Discovery Communications (2015) -U.S. District Court in Northern District of Alabama, allowed false-light IOP case from popular film "The Challenger Disaster" to proceed -Film depicted Lovingood, NASA engineer testifying before the Presidential Commission. Lovingood asked before Commission to estimate probability of total system failure (he says 1 in 100,000). Commission estimates probability to be 1 in 200 -Lovingood sued, alleging he never testified before Commission or offered any estimate of total system failure AND no NASA engineer had ever calculated total system failure -Film cast him a false light because it suggested he and NASA knew the fictional calculation of 1 in 200 before the disaster and chose to ignore it -The court ruled the statements that Lovingood misrepresented critical facts to the Presidential Commission and appeared to be trying to cover up details of the launch that would have saved the crew were ... and placed Lovingood in a false light that would be ... ... to a ... ... Other Falsehoods -False-light privacy suits based on fictionalization not too common today. More typically involves simple e... or ... ..., or ... in j... Misuse of ..., both s... and v..., is a COMMON problem -Saturday Evening Post example (the ... was totally unrelated to the ..., except both were about people being hit by cars - plaintiff would sue and win) WJLA-TV example, how a broadcast station can and cannot use unrelated ... to illustrate a story: -Story on a medical treatment for herpes. The report on herpes appeared on both the 6 and 11 p.m. newscasts. -Both reports carried same videotape of pedestrians walking on a busy city street. Camera zoomed in one on woman, Duncan. Duncan turned and looked at the camera. -On the 6 p.m. news, there was no narration during the opening footage. The camera focused on the plaintiff Duncan, and then the tape cut to a picture of the reporter, who was standing on the street and said, "For the twenty million Americans who have herpes, it's not a cure." The remainder of the story followed. -But for the 11 p.m. news, reporter's opening statement was read by the news anchor a viewers watched the opening videotape, including a close-up of Duncan. -Motion to dismiss the privacy and defamation actions was ... as it related to the 6 p.m. newscast, but ... a summary judgment relating to the 11 p.m. broadcast: "The coalescing of the camera action, plaintiff's action, and the position of the passerby caused plaintiff to be the focal point on the screen. The juxtaposition of this film and commentary concerning Americans with herpes is sufficient to support an inference indeed the plaintiff was a victim." Courts recognize the r... ... is capable of distinguishing between use of an unrelated ... with a story that creates a ... ... and one that doesn't -El Diario Juarez example, immigration officer who let illegal immigrants enter country and took money from drug traffickers in exchange for not checking trucks for drugs (note the dateline and bridge mentioned in story versus ... showing a different city and bridge) Sometimes an error simply occurs and there is little anyone can do about it -Mixing up photos - publication placed individual in false light and so the fault requirement is a strong defense Refrain from using unrelated photos to illustrate stories and articles! -When a story is published about worker carelessness as a prime cause of industrial accidents, control the impulse to pull a random picture of one employee working the assembly line. That employee could contend the story and photo suggest she is careless. -Don't use old photos of kids hanging around the parking lot to illustrate a news story on neighborhood complaints about drug dealing in the park. Juxtaposing the ... ... with the ... w... could give viewers the impression that one of these kids is selling or using drugs

4. False-Light Invasion of Privacy It is illegal to publicize material that places an individual in a FALSE LIGHT if... a) The false light in which the individual was placed would be highly offensive to a reasonable person AND b) The publisher of the material was AT FAULT when the publication was made This fourth tort in IOP quartet has engendered the most disputes within the law. What does this have to do with IOP? Many state courts have refused to recognize this variety of IOP. In 1998, Minn. Supreme Court recognized a cause of action for appropriation, private facts and intrusion but rejected the false-light tort. Four years later, the CO Supreme Court also refused to recognize false-light IOP. Both courts said the cause of action was largely coextensive with libel and didn't see the need to embrace both torts. And in 2008 FL Supreme Court ruled it didn't recognize the false-light tort. False-Light Privacy 1. Publication of material must put an individual in a false light 2. The false light would be highly offensive to a reasonable person 3. The publisher of the material was at fault On the other hand, NV Supreme Court in 2014 for first time recognized the false-light cause of action. "We, like the majority of courts, conclude a false light cause of action is necessary to fully protect privacy interests, and we now officially recognize false light IOP as a valid cause of action in connection with the other three privacy causes of action." Added a majority of courts have found "false light and defamation are distinct torts." Libel and false-light privacy are similar in some ways. At the bast, both involve the publication of something derogatory about the plaintiff. The practical difference between the two is the nasty words published about the plaintiff don't have to strong enough to harm a reputation to qualify for false-light action. In other words, plaintiff doesn't have to show the court their reputation was harmed, only that something false was published and this caused them to suffer embarrassment or humiliation. But in a libel action, the plaintiff is going to have to prove harm to their reputation. The false-light tort was generated more than 80 years ago by judges who were trying to find a remedy for plaintiffs who alleged harm, but whose problems didn't meet the specific requirements of existing privacy law. In the first recorded case, woman sued when she was pictured for six seconds selling bread on the streets of NY in a so-called documentary about the city. Because the main players in the films were actors, who had been given lines to speak, the court ruled the film was fiction or entertainment, not news, despite fact there was no plot to the picture. (It sounds like appropriation, but the court didn't see it this way). The false-light tort grew from that case. Box: The danger of omitting key facts: Creating false meanings by leaving out material and selectively amplifying other facts Journalists can get into legal trouble for omitting key facts from stories. A TN appellate court explained this principle in Eisenstein v. WTVF-TV, News Channel 5 Network (2012). Noting literal truth is not a defense in false light, the court wrote "the facts may be true in a false light claim. However, the angle from which the facts are presented, or the omission of certain material facts, results in placing the plaintiff in a false light. Literal accuracy of separate statements will not render a communication 'true' where the implication of the communication was a whole was false." "The angle from which the facts are presented" means journalists can get into trouble by amplifying discrete info or making selective presentations of info that would cast a person in a false light. As a Penn. Superior Court explained in 2012, Krajewski v. Gusoff, "false light IOP offers redress not merely for publication of matters that are provably false, but also for those that, though true, are selectively publicized in a manner creating a false impression." The key is whether the scenario depicted created a false impression, even if derived from true statements. There are three important elements in this tort. 1) Plaintiff must prove the specific allegations are false. The same rules that apply in a libel action when truth or falsity is at issue apply. The key is whether or not the words that carry the sting, that cause humiliation or embarrassment, are substantially true. Errors in details don't matter as much! Example: Deangelo Bailey sued rapper Eminem for false-light IOP because of his lyrics in 1999 song "Brain Damage" Supposedly autobiographical song described how Eminem was bullied when he was in school, how Bailey banged his head against a urinal, broke his nose, soaked his clothes in blood and so on. Bailey argued there was no proof of these specific allegations, but the court said the sting in the song lyrics was that Bailey was a bully - and he had admitted he picked on Eminem when he was younger. This amounted to substantial truth, the case dismissed. 2) Plaintiff must also prove the false statements are highly offensive to a reasonable person, and 3) The defendant was at fault in publishing the material. The definition of fault in privacy law is the same one applied in libel law. A false-light case can develop from a simple error made by the publisher, but there are other was such cases arise as well. Summary of the more common kinds of cases... 1. Fictionalization The purposeful distortion of the truth, usually for dramatic purposes. Some of the earliest false-light cases involved radio and TV dramatizations of actual news events. Because they didn't know exactly what happened, and because real life is generally boring, scriptwriters often changed these events to increase the drama. False-light suits were often a consequence of this creativity. TV programming and motion pictures are filled these days with stories that supposedly represent events that actually happened. TV producers even have a name for these kinds of programs - docudramas. These kinds of productions pose risks for their creators. They may lead to defamation and appropriation lawsuits. They can also lead to false-light IOP suits. The simple way to avoid these problems is for a TV or motion picture company to buy the rights to the story from the real people they plan to portray. By signing a standard contract (and accepting few dollars in payment), the real-life characters in the story forfeit their right to sue if they are unhappy with how they are portrayed. Individuals who refuse to sign such an agreement are simply written out of the story; they don't exist as far as the video story is concerned. More and more, production companies try to avoid involving the real characters in the story and simply advertise their productions as being "based on a true story." This is shorthand for a more honest statement - "most of this story is fiction." It wasn't uncommon years ago for reporters and editors at many magazines and some newspapers to try to dramatize their stories a bit by adding what they suggested was real-life dialogue or maybe some additional 'facts' to their news reports. Today, most of this kind of journalism is confined to supermarket tabloid newspapers, or sleazy magazines. This kind of journalism has prompted more than its share of libel and false-light privacy claims. And some of the antics that prompt these lawsuits are hard to believe. 96-year-old AR resident sued the Sun tabloid newspaper for using her photo to illustrate a totally fabricated story about a 101-year-old female newspaper carrier who had to give up her route because she was pregnant. Plaintiff Nellie Mitchell's photo had been published 10 years earlier in another tabloid owned by the same company in a true story about the Mountain Home, AR woman. But the editors at the Sun needed a picture to illustrate the story and simply used Mitchell's, undoubtedly thinking she was dead. A U.S. District Court jury awarded the elderly woman $1.5 million in damages. The simple rule for writers who want to be dramatists is this: If you change the facts, change the names and don't use photos of real people! Real names often appear in novels, feature films, TV shows or even ads. Oftentimes individuals will sue (normally unsuccessfully) under appropriation when this occurs. But false-light cases can result too. In such actions, the decision usually rests on whether just the name was taken or whether the identity was taken too. NYT, an ad agency, and the United Negro College Fund were sued for false-light IOP by Lawrence Botts Jr., well-educated white man who complained he and his family had been put in false light by an ad carried in the newspaper for the educational charity. The ad depicts a fictional black man who has turned to alcohol and 'wasted' his mind because he couldn't afford a college education. The man's name in the ad was Larry Botts. 3rd Circuit rejected the suit, the name in the ad was simply a John Doe, 'a generic place holder for the prototypical underprivileged Black youth' Box: Discovering the challenges of false light: Lovingood v. Discovery Communications 2015, U.S. District Court for the Northern District of AL allowed a false-light IOP case stemming from the popular 2013 film "The Challenger Disaster" to proceed. The film chronicled the events leading up to the 1986 explosion and crash of the Challenger space shuttle that killed its crew. The film depicted Judson Lovingood, a NASA engineer, testifying before Presidential Commission investigating the disaster. In the film the actor playing Lovingood is asked before the Commission to estimate the probability of total system failure. The actor replies it is 1 in 100k. An actor playing a member of the Commission calls the calculation 'a wish' than an estimate and states NASA's own engineers estimated the probability of total system failure to be close to 1 in 200. Lovingood sued, alleging he never testified before the Commission or offered any estimate of total system failure and that no NASA engineer had ever calculated total system failure. Instead, Lovingood argued the writers and producers of the film "sacrificed the truth" in an effort to make a dramatic film. L contended the film cast him a false light because it suggested NASA and L knew the fictional calculation of 1 in 200 before the Challenger disaster and chose to ignore it. The defendants in the case moved to dismiss the false-light claim, arguing the suit should be dropped because statements in the film were substantially true and didn't concern L. Applying Alabama's definition of false-light IOP, the court ruled that the statements - that Lovingood misrepresented critical facts to the Presidential Commission and appeared to be trying to cover up details of the launch that would have saved the crew - were false and they placed L in a false light that would be highly offensive to a reasonable person. The differences between just taking a name and taking an identity can be subtle, but they are easy to grasp. Let's say author Nora Roberts writes a novel about a popular actress who has AIDS. In the book, the actress' best friend is a short, chubby nurse named Julia Roberts. The writer has taken actress Julia Roberts' name but not her identity. But if, in the novel, an actress who has AIDS is named Julia Roberts, if she is rather tall and thin, if she won an Academy Award, if she is married to cinematographer Daniel Moder, and so on, then the writer has taken the identity as well as the name. How many characteristics must be the same before plaintiffs can claim their identity was taken and they were placed in a false light? Courts decide this on a case-by-case basis. Novels and feature films often carry a disclaimer: "This is a work of fiction. All the characters and events portrayed are fictitious. Any resemblance to real people and events is purely coincidental." Will this ward off a false-light suit? NO. Though the statement has minimal value in showing the intent of the author, publisher, or producer, the rule is simple: You cannot escape liability for committing a legal wrong by announcing that you are not liable. If you put a large sign on top of your car that said "Stay out of my way. I am a very bad driver and if I hit someone, it is not my fault," this would not relieve you from any liability if you caused an accident. Similarly, the disclaimer that a book is a work of fiction and the characters are fictitious won't prevent a successful privacy suit if the author has obviously appropriated someone's identity and put them in a false light. 1. Other Falsehoods False-light privacy suits based on fictionalization are not too common today. False-light lawsuits more typically involve simple editing or writing errors, or errors in judgment. Misuse of photographs, both still and video, is a common problem. The Saturday Evening Post was plagued by such lawsuits in the 40s and 1950s. Example: magazine once published a picture of a little girl who was brushed by a speeding car in an intersection and lay crying in the street. The girl was the victim of a motorist who ignored a red traffic light, but in the magazine the editors implied she had caused the accident herself by darting into the street between parked cars. The editors simply needed a picture to illustrate the story on pedestrian carelessness and plucked this one out of the files. The picture was totally unrelated to the story, except that both were about people being hit by cars. Eleanor Sue Leverton sued the Post and won. WJLA-TV in the nation's capital was sued in a case that graphically demonstrates how a b-casting station or publication can and cannot use unrelated pictures to illustrate a story. The station broadcast a story on a new medical treatment for genital herpes. Unfortunately, TV news directors believe all news reports need to be illustrated with pictures because viewers won't sit still for talking heads. But stories about medical matters usually offer few opportunities for visuals. The report on herpes appeared on both the 6 and 11 p.m. newscasts. Both reports carried same opening videotape of scores of pedestrians walking on a busy city street. Then the camera zoomed in one on woman, Linda Duncan, as she stood on a corner. Duncan turned and looked at the camera. She was clearly recognizable. On the 6 p.m. news, there was no narration during the opening footage. The camera focused on the plaintiff Duncan, and then the tape cut to a picture of the reporter, who was standing on the street and said, "For the twenty million Americans who have herpes, it's not a cure." The remainder of the story followed. But for the 11 p.m. news, reporter's opening statement was read by the news anchor a viewers watched the opening videotape, including a close-up of Duncan. A defense motion to dismiss the privacy and defamation actions was granted as it related to the 6 p.m. newscast. The court said there wasn't a sufficient connection between pictures of the plaintiff and the reporter's statement. But the court denied a summary judgment relating to the 11 p.m. broadcast: "The coalescing of the camera action, plaintiff's action (turning to the camera), and the position of the passerby caused plaintiff to be the focal point on the screen. The juxtaposition of this film and commentary concerning 20 million Americans with herpes is sufficient to support an inference indeed the plaintiff was a victim." A jury should decide whether the connection was strong enough. Courts recognize the reasonable juror is capable of distinguishing between the use of an unrelated photograph with a story that creates a false impression and one that doesn't. When the newspaper El Diario Juarez ran a story about an immigration officer who let truckloads of illegal immigrants come into the country, and who took money from drug traffickers in exchange for not checking trucks for drugs, it ran a photo of another officer Christopher Houseman, to illustrate the report. The photo showed Houseman, who wasn't involved in the illegal activity, working a border checkpoint in uniform, with a police dog. There was a bridge in the background. The story about the suspect agent was datelined McAllen, TX, and named a crossing bridge used by the agents. The picture of Houseman showed him working in El Paso, TX, alongside a different bridge. The TX Court of Appeals ruled the false-light claim filed by Houseman wouldn't stand because a reasonable reader would recognize the plaintiff was working in El Paso, not McAllen, and couldn't be the officer charged with illegal activity. Sometimes an error simply occurs, and there is little anyone can do about it! A newspaper in OK published an article concerning the death of a former local schoolteacher who had been convicted of murder and who was reportedly mentally ill. But the photo used to accompany the story was that of Frenche Colbert, who lived in Phoenix, AZ. Colbert's picture had been sent to the newspaper years earlier when he graduated from law school. Somehow, this photo got mixed up with that of the schoolteacher. There is no question this publication put Colbert in a false light. In such cases, the fault requirement is a strong defense. A simple precaution will protect publishers and broadcasters against many false-light suits. Refrain from using unrelated photos to illustrate stories and articles. When a story is published in the employee magazine about worker carelessness as a prime cause of industrial accidents, control the impulse to pull from the files of a random picture of one of the employees working on the assembly line. That employee could contend the story and photo suggest she is careless. Similarly, don't use old photos of kids hanging around the parking lot at a local park to illustrate a news story on neighborhood complaints about drug dealing in the park. Juxtaposing the wrong pictures with the wrong words could give viewers the impression that one of these kids is selling or using drugs.

Giving publicity to private facts about someone's life is what provoked scholars ... and ... to propose in 1890 the law should protect an individual's right to privacy. Some label this gossip-mongering, others legitimate journalism. It has become the stock in-trade for a growing number of periodicals, sites, programs. The law is largely ... in stopping it! Public Disclosure of Private Facts The most common definition of this tort is set in the Restatement (Second) of Torts adopted by many states: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of their privacy, if the matter publicized is of a kind that: a) Would be ... ... to a r... ... AND b) Is not of l... ... to the ... "Keyhole journalism" is what press critics in late 19th called it. Snooping, prying, gossipy, scandal-driven reporting was just emerging. Attorneys Warren and Brandeis proposed a legal solution, a right of privacy, e... in a ... of l... But American courts have been less than e... in their support of such ideas What makes this tort c... s... in the eyes of many judges and scholars is it punishes the ..., or whomever, for publishing ... information that has been ... obtained! Seems to run against basic American ... ... tenets and a substantial body of ... law. ..., then, is NOT a defense for the media when sued for public disclosure of private facts. The best defense, instead, is the facts disclosed were of ... ... ... or are ...! The tort only applies to the publication of n...-... private facts. We best understand this aspect of law by taking the tort apart and looking at each element separately: The ... in a private facts case carries the ... of ... each element. Failure to convince the court of any of these three parts of the law is doomed -Being mindful of privacy can be difficult - gathering and disseminating info is easier than ever (surf through someone's life online, personal data leaks by companies, banks, Web sources) -Disclosing ... information gathered via the ... and then ... it would fall under publication of private facts area of privacy law -The law applies in much the same way to ... publications as it would if information published in a ... or on ... (... data privacy is a growing concern and expanding area of law) -The ... ... ... also has developed ways to protect an individual's ... data, act against companies who have e... such information or not properly disclosed how this information is being ... or ... (outside of this, the government has done ... else) -Members of Congress annually condemn tech company treatment of personal information, but despite public concern, ... has been done to solve the problems -Facebook, Google, Twitter have p... ... (l...) who meet members of Senate and House. Each year these companies spend more and more on political contributions -Each year the term 'Internet privacy is an oxymoron' becomes more accurate -Though most Americans say they care about protecting privacy, they often do not ... in a way that demonstrates that! (stories on private lives of public persons in print, TV, web gobbled up by readers; growth of social media registration - share most intimate aspects of private life) But remember privacy law applies to ... ..., m... s... and ... p... the same way it does to more ... publications Three basic elements of the public disclosure of private facts tort: 1. There must be ... given to private facts about an individual 2. The revelation of these facts must be ... ... to a ... ... 3. The published material must not be of ... ... ... Element #1: Publicity This term means something different than 'publication' in libel law (communicate to a ... third party). The word 'publicity' means the material is communicated to the ... at ... or to a ... number of people, making certain the facts will shortly become ... knowledge -This kind of publicity can be presumed when...? But simply communicating the facts to ... or ... people doesn't amount to publicity Example: Private details of 20-year relationship with a radio disc jockey were disclosed by the jockey in a series of on-air tirades after the relationship ends -Florida appellate court, Doe v. Beasley Broadcast Group, Inc. -The appellate court r... to ... the plaintiff's cause of action for public disclosure of private facts. The court reasoned the plaintiff 'presented evidence the disc jockey publicly disclosed private facts during broadcasts. Also presented evidence as a result of the b-casts, she suffered stress, anxiety, humiliation, and physical ailments' -M... ... are recoverable in public disclosure of private facts case! Private Facts Before a public disclosure suit can be successful, plaintiff must demonstrate the material publicized was indeed ... What happens in ... is considered ... information! Examples: -Associated Press reported identity of sexual assault victim who testified at the sentencing hearing of the molester. Name wasn't in court records and hadn't been made ... before the hearing. But the testimony was given in ... c..! 4th Circuit 'v... d... of ... in an ... c... -One of two young women who were photographed while attending a rock concert at the Big Cypress Indian Reservation sued when her picture was published in magazine. She argued picture was taken on privately owned land at a concert open only to ticket holders, it was a private affair. FL Circuit Court ..., noting as a matter of law, a rock concert is a ... event -Protecting your privacy in ... is even more difficult now that everyone carries a smartphone with a camera. Should act as if someone is taking photos of you all the time If a ... s... of the ... is already aware of supposedly intimate or personal information, it isn't ...! -Oliver Stipple deflected gun by woman who tried to assassinate President Ford, sued San Francisco Chronicle after columnist noted because Sipple was gay was likely the reason Ford never thanked him -Sipple's suit ..., his orientation was hardly a ... in San Francisco. California Court of Appeal - he frequented gay bars, marched in parades and openly worked for the election of homosexual political candidates. Many gay publications had reported stories about his activities in the homosexual community. That he was gay wasn't a ... fact! -Steinbuch sued Cutler for publishing detailed information about their sexual relations on her blog. Steinbuch also sued Cox for describing Cutler's blog contents, republishing excerpts on her web site and providing a hyperlink to Cutler's blog. The court ruled the lawsuit against Cutler could proceed, the court ... the claim against Cox because she did nothing but blog what was already ... -Navy SEALs sued Associated Press for publishing photos posing with captives. The court held the images ... ... facts because the SEALs were members of the ... on ... ... conducting wartime operations and ... to be photographed and to have those photographs placed on the ... It is an overstatement to say that if ... ... knows the info it is no longer a ... fact! -Georgia appellate court, TV station accidentally revealed the identity of a victim of AIDS who was being interviewed. The fact the plaintiff had discussed his AIDS with ..., ... and ... ... defeat his privacy claim! He could ... his right of privacy for one purpose - discussing the matter with ... and ... - and can still a... it for another purpose - a broadcast Information contained in documents and files considered ... ... - that is open to ... inspection - is generally not regarded as ... -If no person has inspected the file and its contents are published, can still be considered ... -Idaho Statesman example (document never part of criminal proceeding and never made it to public court record BUT part of public criminal case file stored in court clerk's office) -Idaho Supreme Court - newspaper cannot be held liable for accurately reporting what was contained in a court record open to the ... If an individual tells a reporter something about themselves that others do not know, is that information still private? -...! But what if the reporter promised not to reveal the ... of person who ... the information? -Students claim they were promised by student reporters anonymity but school district maintains students agreed to have names included. Story was ... and not an invasion of privacy -... c... would have solved the case more quickly - courts generally follow standard that a person's c... is valid, so long as person has legal capacity to give it - regardless of ...! But does the individual understand the consequences of revealing the information? Naming Rape Victims One of the most controversial issues in private facts realm of privacy law Two questions: 1. ... the name or identity be legally published? 2. ... the name or identity be published? The ... is clear on the matter; the ... issue is more complicated Since mid-1970s, courts have consistently ruled if a victim's name is part of a ... d... or p..., or if the press obtains it in another ... manner, it can be published without incurring liability Cox Broadcasting v. Cohn (1975) Supreme Court ruled a privacy action against a Georgia broadcasting station for publishing the name of a rape victim could not succeed because the victim's identity had been included in ... ... documents "Reluctant to embark on a course that would make ... ... generally available to the media but forbid their publication if offensive to sensibilities of supposed reasonable person. Such a rule would make it very difficult for press to inform their readers about the ... b... and stay within the law." Florida Star v. BJF -Supreme Court reiterated that decision (1989), ruled a privacy action could not proceed against a newspaper that accidentally published a sexual assault victim's name it had obtained from a document that WAS NOT ... ... -Document had been mistakenly given to reporter by officer, "The fact state officials are not required to d... such reports does not make it unlawful for a newspaper to r... them when provided by the ..." -Ruling was a limited one - where a newspaper publishes ... information which it has obtained ..., punishment may be imposed, if at all, only when n... ... to a state ... of the ... order! -Lower courts consistently ... this course The chances of the victim of a sexual assault successfully suing a paper or station or blogger for revealing their name is ..., if not ...! Bartnicki v. Vopper reinforced principle from Cox v. Cohn, the news media can publish ... information of ... s... they ... obtain unless the government provides an ... of the ... order! But should the name of rape victims be published? -As a matter of fact, most publications and stations ... ... routinely publicized the name of victims of sexual assaults during last two decades. What was once common practice 50 years ago has been abandoned Critics of the practice raise three arguments: 1. Someone who is sexually assaulted becomes a v... ... times: the first during the ...; second during ... by often unsympathetic police, prosecutors, defense lawyers; third when the identity is ... in the ... 2. Society often judges the rape victim to be as ... as the ...: can stigmatize the victim for many years 3. (Because of first two) Victims who realize their identities will be revealed frequently fail to ... the ..., especially it the rape has been committed by an ... - The rapist isn't ... and may go on to attack ... ... The validity of these arguments is difficult to d...! But some journalists will publish the victim's name regardless of the ... a. Adds ... to a story, making it more m... to readers/viewers b. When press fails to publish the name, it is treating the victim differently than victim of simple assault or robbery. Reinforces notion rape victims are at least p... ... for their fate or are 'd... ...' c. By not printing name, press reinforcing idea rape is different kind of attack, not a crime of b... ... (Overholser) Some organizations try to reach compromise - do not disclose name unless they consent to the use

Chapter 8: Invasion of Privacy - Publication of Private Information and False Light Giving publicity to private facts about someone's life is what provoked legal scholars Samuel D. Warren and Louis D. Brandeis to propose in 1890 the law should protect an individual's right to privacy. Some label this gossipmongering, others describe it as legitimate journalism. It has become the stock-in-trade of a growing number of periodicals, Web sites and TV programs. The law is largely ineffective in stopping it. Also explore the strangest of privacy torts, false-light invasion of privacy. 3. Public Disclosure of Private Facts The most common definition of the privacy tort (civil legal cause of action) known as public disclosure of private facts is the one set in the Restatement (Second) of Torts and adopted by many states: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of their privacy, if the matter publicized is of a kind that: a) Would be highly offensive to a reasonable person AND b) Is not of legitimate concern to the public "Keyhole journalism" is what press critics in late 19th century called it. The snooping, prying, gossipy, scandal-driven reporting that many of us today have come to take for granted in both print and electronic media was just emerging at end of 19th. Lot of people believed it was offensive and wanted it stopped. Attorneys Samuel Warren and Louis Brandeis even proposed a legal solution, a right of privacy, enforceable in a court of law. But American courts have been less than enthusiastic in their support of such ideas! What makes this tort constitutionally suspect in the eyes of many judges and legal scholars is it punishes the press, or whomever, for publishing truthful information that has been legally obtained. Making the press liable in such instances seems to run against basic American 1A tenets and a substantial body of case law. Truth, in other words, isn't a defense for the media when sued for public disclosure of private facts. The best defense, instead, is the facts disclosed are of legitimate public concern or are newsworthy. The tort only applies to the publication of non-newsworthy private facts. It is easiest to understand this aspect of the law by taking the tort apart and look at each element separately. The plaintiff in a private facts case carries the burden of proving each element. Failure to convince the court of any of these three parts of the law means lawsuit is doomed. Being mindful of privacy can be difficult! Today, gathering info and disseminating it is easier than ever. It is possible in many instances to surf through people's lives with just a few key strokes on a computer. In addition, news stories about leaks of personal data from companies, various data banks, and other Web sources are commonplace. Disclosing personal info gathered via the Internet and then publishing it would fall under the publication-of-private-facts area of privacy law. As with defamation and intrusion, it is important to remember the law applies in much the same way to online publications as it would if the info were published in a newspaper or broadcast on TV. Thus, Internet data privacy is a growing concern and an expanding area of the law. In addition to the publication of private facts area of law, the Federal Trade Commission has also developed ways to protect an individual's online data and have acted against companies who have exploited the info or not properly disclosed how personal info is being gathered or used, the government has done little else. Members of Congress annually condemn tech companies' treatment of personal information, but despite substantial public concern, little has been done to solve the problems. Companies like Facebook, Google, Twitter all have personal representatives, usually called lobbyists, in D.C. who meet members of the Senate and House. These companies are spending more and more each year on contributions to political candidates. It isn't entirely correct to say the term 'Internet privacy' is an oxymoron, but each year that description becomes more and more accurate. Things will not change until Americans demand a change, and though most Americans say they care about protecting privacy, they often don't behave in a way that demonstrates that. While declaring the press should be liable for publishing stories about the private lives of public persons, stories in the printed press, on TV and on the Web are seemingly gobbled up by readers and viewers. Is there really a concern about privacy when a vast majority of Americans carry devices that can openly or secretively record and photograph their records, neighbors, and even strangers? In addition, explosive growth of social media sites where users seem willing to share the most intimate aspects of their private lives with their 'friends' and strangers seems to run counter to any stated concerns over privacy. But, it is important to remember the privacy law applies to social media, microblogging sites and Internet publications the same way it does to more traditional publications, as Web site Gawker discovered when it published a sex tape of professional wrestler Hulk Hogan. Basic elements of the public disclosure of private facts tort: 1. There must be publicity given to private facts about an individual 2. The revelation of these facts must be highly offensive to a reasonable person 3. The published material must not be of legitimate public concern Publicity The term 'publicity' in privacy law means something different than term 'publication' does in libel law. In defamation, 'publication' means to communicate to a single third party. The word 'publicity' in privacy law implies far more! It means the material is communicated to the public at large or to a great number of people, making it certain the facts will shortly become public knowledge. This kind of publicity can usually be presumed when a story is published in a newspaper, broadcast over radio or TV or posted on a web site. Simply communicating the facts to two or three people, though, doesn't amount to publicity! How would you feel if the private details of your 20-year personal relationship (one that produced a child) with a radio disc jockey - a shock jock - were disclosed by the disc jockey in a series of on-air tirades after the relationship ends? That was the scenario in a 2012 Florida appellate court ruling called Doe v. Beasley Broadcast Group, Inc. The appellate court refused to dismiss the plaintiff's cause of action for public disclosure of private facts. The court reasoned the plaintiff 'presented evidence the disc jockey publicly disclosed private facts about her during broadcasts. She also presented evidence that as a result of the b-casts, she suffered stress, anxiety, humiliation, and physical ailments such as a large rash and boil on her face, which left a residual scar." Such mental injuries are recoverable as damages in public disclosure of private facts lawsuits. Private Facts Before a public disclosure suit can be successful, the plaintiff must demonstrate the material publicized was indeed private. What happens in public is considered public information. When the AP reported the identity of a sexual assault victim who testified at the sentencing hearing of the molester, the young man sued for IOP. The name wasn't in the court records and hadn't been made public before the hearing. But the testimony was given in open court! 4th Circuit ruled in favor of news-gathering agency, saying 'we cannot understand how the voluntary disclosure of information in an unrestricted, open courtroom setting could be anything but a matter of public interest.' One of two young women who were photographed while attending a rock concert at the Big Cypress Indian Reservation in FL sued when her picture - showing her exposed breasts adorned with tattoos and body paint - was published in Stuff magazine with caption "Their Parents Must Be Proud." She argued because the picture was taken on privately owned land at a concert open only to ticket holders, it was a private affair. FL Circuit Court disagreed, noting as a matter of law and common sense, a rock concert is a public event. Protecting your privacy in public is even more difficult now that everyone carries a smartphone with a camera. Some people have learned the hard way you should act as if someone is taking photos or shooting videos of you all the time and the footage is going to end up all over the Internet. Additionally, if a large segment of the public is already aware of supposedly intimate or personal information, it isn't private! Oliver Stipple, deflected gun held by woman who tried to assassinate President Ford, sued San Francisco Chronicle after columnist noted the fact Sipple was a homosexual was probably the reason Ford never thanked his benefactor for his heroic act. But Sipple's suit failed, in part at least because his sexual orientation was hardly a secret in San Francisco. A CA Court of Appeals noted Sipple routinely frequented gay bars, marched in parades with other homosexuals and openly worked for the election of homosexual political candidates, and that may gay publications had reported stories about his activities in the homosexual community. That he was a homosexual wasn't a private fact! 2007, Robert Steinbuch, former Congressional aide, sued Jessica Cutler, another former aide, for publishing detailed and explicit information about their sexual relations on her blog. Cutler used Steinbuch's initials RS when using graphic terms to describe their sex life. Steinbuch also sued Anna Marie Cox of the blog for describing Cutler's blog contents, republishing excerpts on her web site and providing a hyperlink to Cutler's blog. While the court ruled the lawsuit against Cutler could proceed, the court dismissed the claim against Cox because she did nothing but blog what was already public. 2005, several Navy SEALs sued Associated Press for publishing photos of them posing with Iraqi captives in compromising positions. The court held the images weren't private facts because the Navy SEALs were members of the military on active duty conducting wartime operations and agreed to be photographed and to have those photographs placed on the Internet. But it is an overstatement to say that if anyone else knows the info it is no longer a private fact! Georgia appellate court, 1994, when a TV station accidentally revealed the identity of a victim of AIDS who was being interviewed during a b-cast, the fact the plaintiff had discussed his AIDS with friends, family and doctors DIDN'T defeat his privacy claim! The court said he could waive his right of privacy for one purpose - discussing the matter with family and physicians - and can still assert it for another purpose - a TV broadcast. Who knew what about the private life of the individual could be considered by a court. Information contained in documents and files considered public records - that is open to public inspection - is generally not regarded as private. What if no person has ever inspected the file, but then its contents are published? It may still not be considered private! Idaho Statesman sued when it published a photo of a handwritten statement that was given to police in 1955 during an investigation of a sex scandal. The individual who gave the statement was charged and convicted, but the statement implicated other people who were never charged with the case. The document was never part of a criminal proceeding and never made it into a public court record but was kept for 40 years in a public criminal case file that was stored in the court clerk's office. It was discovered and published in 1995 in an article about the earlier scandal during a debate on a public initiative to limit the rights of gays in Idaho. An individual who was linked to a homosexual relationship (but never charged with a crime) in the original 40 year old document sued for IOP. The Idaho Court of Appeals said the publication was protected because it was part of an official criminal court file. After two hearings, Idaho Supreme Court affirmed the lower court rulings, saying the newspaper couldn't be held liable for accurately reporting what was contained in a court record open to the public. If an individual tells a reporter something about themselves that others don't know, is that information still private? No, but what if the reporter promised not to reveal the name of the person who revealed the information? Washington state case where four high school students sued the school district for IOP because the student newspaper published detailed stories about their sex lives. The students aid when they discussed the subject with the student reporters, they were promised anonymity. The school district maintained the students actually agreed to have their names included. The case went to trial, jury found in 2010 the story was newsworthy and not an IOP. Written consent undoubtedly would have resolved the case more quickly. Courts have generally followed the standard that a person's consent is valid, so long as the person has the legal capacity to give it - regardless of age. The key is, according to the Student Press Law Center, does the individual understand the consequences of revealing the info? Naming Rape Victims One of the most controversial issues in the private facts realm of privacy law concerns the publication of the name of a victim of a sexual assault. Two questions arise: Can the name or identity be legally published? And should the name or identity be published? The law is clear on this matter; the ethical issue is more complicated. Since mid-1970s, courts have consistently ruled if the victim's name is part of a public document or proceeding, or if the press obtains it in another legal manner, it can be published without incurring liability. In 1975, Cox Broadcasting v. Cohn, Supreme Court ruled a privacy action against a Georgia b-casting station for publishing the name of a rape victim couldn't succeed because the victim's identity had been included in public court documents. "We are reluctant to embark on a course that would make public records generally available to the media, but forbid their publication if offensive to the sensibilities of the supposed reasonable man" Justice White. "Such a rule would make it very difficult for the press to inform their readers about the public business and yet stay within the law." 14 years later, Florida Star v. BJF, court reiterated its decision when it ruled a privacy action couldn't proceed against a newspaper that accidentally published a sexual assault victim's name it had obtained from a document that wasn't public record. The document had been mistakenly given to the reporter by a police officer, and the publication violated the newspaper's own policy against publishing such info. "The fact that state officials aren't required to disclose such reports doesn't make it unlawful for a newspaper to receive them when furnished (provided) by the government," wrote Justice Marshall. But the justice noted the court's ruling was a LIMITED ONE - "We only hold that where a newspaper publishes truthful info which it has obtained lawfully, punishment may be imposed, if at all, only when narrowly tailored to a state interest of the highest order!" Since this 1989 decision, lower courts have consistently followed this course. The chances of the victim of a sexual assault successfully suing a newspaper or b-cast station or blogger for revealing their name are REMOTE, if not impossible. 2001, Bartnicki v. Vopper, Court reinforced the principle from Cox v. Cohn the news media can publish truthful info of public significance they lawfully obtain unless the government provides an interest of the highest order. But should the name of a rape victim be published? As a matter of fact, most publications and b-cast stations haven't routinely publicized the name of the victim of a sexual assault during the last two decades. What was once a common practice 50 years ago has been abandoned. But some media outlets do publish the material. Critics of this practice raise three arguments: 1. Someone who is sexually assaulted becomes a victim three times: the first during the assault; second during interrogation by often unsympathetic police, prosecutors, defense lawyers during investigation and public trial; third when the identity is published in the press, revealing the details of the attack to neighbors, friends, co-workers, others 2. Society often judges the rape victim to be as guilty as the rapist, and this can stigmatize the victim for many years 3. Because of the first two factors, victims who realize their identities will be revealed frequently fail to report the crime, especially it the rape has been committed by an acquaintance. The rapist isn't punished and may go on to attack another victim The validity of the arguments is difficult to dispute. But some journalists will publish or b-cast the victim's name regardless of the consequences. They argue it is important for society to know the names of all crime victims. Publishing the name of a victim adds credibility to a news story, making the story more meaningful to readers or viewers. Others argue when the press fails to publish the name of a rape victim, it is treating the victim differently from the victim of a simple assault or a robbery. This reinforces the notion rape victims are at least partly responsible for their fate or they are 'damaged goods.' Overholser, former editor of Des Moines Register, argues by not printing the name, the press is reinforcing the idea rape is a different kind of attack, not a crime of brutal violence. Some media organizations are trying to reach a compromise on this matter by not disclosing the victim's name unless they consent to the use. Victims who fear the publicity are protected; using the names of those who don't mind undermines the myth noted by Overholser.

Bollea v. Gawker Media, LLC (2016) -Deep pockets of Hulk Hogan by Thiel (venture capitalist, Gawker had outed in past as gay) -This lawsuit by Bollea is ... and puts Gawker ... of ... -Argument of Bollea: He was harmed (embarrassed/humiliated by this public disclosure) -Argument of Gawker Media: Bollea is more concerned about the release of a second tape where he expressed racial/homophobic comments. Main defense is Hogan was a public figure and making remarks on his sex life was part of public information (public should decide whether they still support their "American ideal") Final damages $140.1 million to Bollea -$115 million in compensatory damages $25 million in punitive damages ($15 million to Gawker Media; $10 million to Nick Denton; $100k to the writer of the article) The jury would determine: Publicized? ... Highly offensive to a reasonable person? ... Of legitimate public concern? ... Therefore, the article ... a public disclosure of private facts What were the basic elements of publication of private information in the Bollea case? 1. There must be ... given to private facts about an individual. Jury said ... - Posted on Gawker Media flagship site, obviously disseminated to the public at large (The tape was posted) 2. The revelation of these facts must be ... ... to a ... ... Depends on your jury. This was salacious, mean-spirited. Would it just be beyond offensive to eggshell plaintiffs? Would it be ... ... to a ... ...? Jury said ... Remember, this is not whether Bollea was offended by it. This is whether a ... ... would be offended by it 3. The published material must not be of ... ... ... Also depends on your jury Jury said ... What is the difference between Hogan and Bollea for the purposes of IOP law? Bollea is Hogan's legal name; Hogan is his performance name Bollea's lawyers made the novel argument Hogan was an "altar ego" - that Bollea was simply acting as a character in his public appearances. Hogan as a character gave up his right to privacy but Bollea should still expect some right to privacy. This idea of a pubic persona or public performance (say and do things that might not represent the private person). That there is a public persona/performance but also a private life Novel argument by Bollea - had the right to privacy despite his status as a public figure This type of argument will not set a precedent, but was an innovative, outlandish argument to get the jury on his side! Did Gawker invade Bollea's privacy? Why or why not? Remember, the three elements of publication of private information are ... - up to ...!

-Successful, out of business (bankrupted entire office) Information on case: Hulk Hogan was a larger than life, all-American image [boast in character about the tape after the article release] As a character, never seen as Bollea before Shooting a reality show at the time in 2007, Bollea had a bad marriage This was a hometown star in Florida vs. media capital of the world (NYC) Gawker (had a long history of criticism) - idea of stories between journalists (behind the scenes, frivolous tone. Flaunted the convention of how a proper press was meant to behave over people in the public eye, seen as ruthless "True things about bad people" Asked to take it down, to protect Bollea's privacy rights Invaded the privacy of Bollea VS. the performance of Hogan on Stren and in other public appearances 'as Hulk Hogan' This idea of "puffery" in advertising but apply to celebrity boasting (Trump, Bollea making remarks about Hogan) Exaggeration - meant to be sarcastic: His "Television Personality" or "Television Character" vs. the real person Bollea would drop the IIED charge, caused the insurance company to back off. So, Gawker could not pay for insurance (destroyed the company) Theory on a second tape of Hogan with racial epithets and homophobic speech, would be newsworthy, would destroy his career (legitimacy of this theory unknown) Bubba the Love Sponge stated on podcast Bollea knew he was being recorded. Would settle with Bollea, Gawker could not call Bubba to trial (THIS was also not admitted in testimony, so the jury would not know of this information) . . . . . . . . . . . Yes, yes, no, was Publicity YES Highly offensive, reasonable person YES Reasonable person Legitimate public concern NO Subjective Interpretation

Handling FOIA Requests Filing an FOIA request is a simple matter! Request letter generators available online (Reporters Committee for Freedom of the Press; Student Press Law Center). Government agencies also provide online information on filing requests (DOJ) The ...-day response time, spelled out by federal statute: -The clock generally starts to run on the date in which the request is first received by the a... c... of the agency! -The ... days doesn't include Saturdays, Sundays, legal public holidays -The agency does not need to ... the documents within ... days, but must make a s... "d..." about how it will ... to the request! U.S. Court of Appeals for D.C. held while a government agency need not actually ... the documents within ... business days, it must at least indicate within the relevant time period the scope of the documents it will ... and the ... it will claim with respect to any w... documents! -Within a ... day window, an agency must determine whether to c... with a request (will a requester receive all the documents they seek?) -It is NOT ENOUGH that within the relevant time period the agency simply decides to l... d...! The court added, however, in ... c... agencies may ... the ... day limit up to ... working days by serving w... n... to the requester! -C... justifying an ... might include situations where a voluminous amount of separate and distinct records are demanded in a single request -The complete list of ... c... is described by a federal statute -Many agencies have ... meeting the ... day deadline Agencies are required to report to ... each year and must include in a report the list of materials to which access was ... and to which access was ... and the c... incurred OPEN Government Act of 2007 - also requires in addition to reporting the median number of days required to process requests; average number of days for the agency to ... to the request beginning on the date which it was received by the agency, and the range in number of days for agency to ... to such requests! -To shame f...-... agencies into c..., government agencies must now report their 10 ... p... requests! Remember, if an individual/group has to go to court to get the agency to release materials and the agency ... the case, the agency may be assessed the cost of the complaint's ... f... and ... c... - FOIA allows a court to award r... ... f... to a plaintiff who has "substantially prevailed" in a FOIA lawsuit against a government agency, though a court is not ... to grant such fees! Agency personnel are ... r... for granting or denying access, a requirement federal agencies object with great effort. An employee of an agency who denies a request for information must be ... to the person who seeks the material, and if the access is denied in an a... or ... manner, the employee can be ... by the Civil Service Commission There is no initial fee to file a FOIA request, but agencies may charge reasonable fees for s..., c..., and r... files depending on the particular category into which a request falls Requesters fall into three groups for fee purposes: 1. ... Requesters - Charged for ... t... (costs incurred during initial review of a record to see if it must be disclosed under FOIA) and d... 2. ... Institutions, N...-... ... Institutions and Representatives of the ... ... - Charged only for d... (first ... pages free) 3. All Other Requests - Charged for ... ... (after two free hours) and d... (first ... pages free) Anyone who seeks a fee waiver under FOIA must show the disclosure of the information is "in the ... interest because is likely to contribute significantly to ... understanding of the operations/activities of the ... and is not primarily in the ... interest of the requester" OPEN Government Act of 2007 also broadened definition of a "representative of the ... ..." exempt from document ... fees to include a freelance ... working for a ... ... entity "If the ... can demonstrate a solid basis for expecting p... through that entity, whether or not the ... is actually employed by the entity" -As methods of ... delivery evolve (like the adoption of electronic dissemination of newspapers through telecommunication services) such alternative media will be considered to be ...-... entities! -Each federal agency must maintain a "FOIA Requester S... C..." that requesters may speak with to check on the ... of their requests and receive information on the agency's r...! (Executive order by W. Bush in 2005) -OPEN Government Act of 2007 turned the establishment of FOIA public liaisons into ... law, requiring each agency to have one or more such public liaisons for assisting in reducing d..., increasing t... and understanding the ... of requests and assisting in the resolution of disputes Tips on how to get records! Many old journalistic hands will argue that f... FOIA requests should be a ... ...! a. Ask in... for documents - a ... FOIA request often takes much l... b. Look to p... c... r... for information that takes l... to get through a FOIA request c. Cultivate t... s... within federal agencies d. Follow up FOIA requests with t... c... e. Don't kick and scream, unless kicking and screaming is j... And don't forget to occasionally p... the FOIA officer who helps you

Handling FOIA Requests Filing a FOIA request is a relatively simple matter. The Reporters Committee for Freedom of the Press has an online request letter generator on its Web site. Government agencies also provide extensive online information about filing FOIA requests. Example: The U.S. Department of Justice maintains a link on its Web site devoted to FOIA. The Student Press Law Center also offers a free automated open-records request letter generator. Box: Understanding the 20-day response time The 20-day response time, which is spelled out by federal statute, is important to understand. The clock generally starts to run on the date on which the request is first received by the appropriate component of the agency. Second, the 20 days does not include Saturdays, Sundays and legal public holidays. Third, the agency does not need to produce the documents within 20 days, but it must make a substantive "determination" about how it will respond to the request. Example: 2013, U.S. Court of Appeals for D.C. held while a government agency "need not actually produce the documents" within 20 business days, "it must at least indicate within the relevant time period the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents" The court noted within a 20 day window, "an agency must determine whether to comply with a request - whether a requester will receive all the documents the requester seeks. It is not enough that, within the relevant time period, the agency simply decide to later decide" The court added, however, in unusual circumstances agencies may extend the 20 day limit to up to 30 working days by serving written notice to the requester. Circumstances justifying an extension include situations where a voluminous amount of separate and distinct records are demanded in a single request. Complete list of unusual circumstances is described by a federal statute. Many agencies have difficulty meeting the 20 day deadline Agencies are required to report to Congress each year and must include in a report the list of the materials to which access was granted and to which access was denied and the costs incurred. The OPEN Government Act of 2007 also requires, in addition to reporting median number of days required to process requests, government agencies must provide "average number of days for the agency to respond to a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests" In addition, in a way of shaming foot-dragging agencies into compliance, government agencies must now report their 10 oldest pending requests. If an individual or group has to go to court to get the agency to release materials and the agency loses the case, the agency may be assessed the cost of the complaint's legal fees and court costs. FOIA allows a court to award reasonable attorney fees to a plaintiff who has "substantially prevailed" in a FOIA lawsuit against a government agency, though a court is not required to grant such fees. Agency personnel are personally responsible for granting or denying access, a requirement federal agencies object to strenuously (with great effort). An employee of an agency who denies a request for information must be identified to the person who seeks the material, and if the access is denied in an arbitrary or capricious manner, the employee can be disciplined by the Civil Service Commission. There is no initial fee to file a FOIA request, but agencies may charge reasonable fees for searching, copying and reviewing files, depending on the particular category into which a FOIA request falls. FOIA divides requesters into three groups for fee purposes: 1. Commercial Requesters: Charged for search time, processing time (costs incurred during initial review of a record to see if it must be disclosed under FOIA) and duplicating 2. Educational Institutions, Noncommercial Scientific Institutions and Representatives of the News Media: Charged only for duplicating (first 100 pages free) 3. All Other Requesters: Charged for search time (after two free hours) and duplicating (first 100 pages free) Anyone who seeks a fee waiver under FOIA must show the disclosure of the information is "in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester" Significantly, the OPEN Government Act of 2007 broadened the definition of a "representative of the news media" exempt from document search fees to include a freelance journalist working for a news media entity "if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity" The act made it clear that "as methods of news delivery evolve (for example, adoption of electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities" Under executive order signed by W. Bush in 2005, each federal agency must maintain a "FOIA Requester Service Center" that requesters may contact to speak with a FOIA public liaison to check on the status of their FOIA requests and to receive information about an agency's response. OPEN Government Act of 2007 turned the establishment of FOIA public liaisons under Bush's executive order into statutory law that requires each agency to have one or more such public liaisons "responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests and assisting in the resolution of disputes" Box: Tips on how to get records Many old journalistic hands argue that formal FOIA requests should be a last resort. Jack Briggs advises reporters to do the following: è Ask informally for documents - a formal FOIA request often takes much longer è Look to public court records for information that takes longer to get through a FOIA request è Cultivate trusted sources within federal agencies è Follow up FOIA requests with telephone calls è Don't kick and scream, unless kicking and screaming is justified. And don't forget to occasionally praise the FOIA officer who helps you

Reporters Committee for Freedom of the Press: Police, Protestors, and the Press U.S. has seen waves of mass demonstrations and political protests in recent years. Press coverage of these events has been vital to communicating protestors' concerns to the government and the public. Yet in 2017 the most dangerous place in the U.S. for a journalist was at a protest -U.S. Press Freedom Tracker, nearly half of all press freedom incidents - a... and ... on journalists, as well as s... and ... of n... e... - occurred at protests This guide will not replace the l... a... of an ...! Overview of the Law -Journalists covering protests have the ... r... as o... ... of the ... to observe, photograph, and record in public places. -The ... ... protects journalists' fundamental free s..., p... and a... rights, which includes protection from ... for n... ... c... or to p... r... on p... d... -Police may not prevent journalists from covering protests if the journalists are in a place where the ... is allowed, and they are not ... or in... with ... ...; simply being near a protest or other newsworthy event isn't a crime! -But journalists can be ... if police have ... ... to believe a journalist ... the ... while reporting - example, by trespassing or disobeying a police order to disperse -An increasing number of courts have also recognized a ... ... right to ... police in the p... ... of their jobs, though the interpretation of this right ... by ...! Both the ... ... and the ... ... Act of ... protect journalists from having their ... and b... s... and ...! First Amendment Protections Freedom of Speech and of the Press -The 1A safeguards the right to freedom of speech and the press, which are fundamental liberties "at the foundation of free government" Government may not use ... p... or other means to a... or u... in... with those freedoms. In fact, the purpose of these rights was to foster public discussion free of ... interference! Right to g... ... generally Freedom of the press includes some protection for the right to c... and d... ..., but this right isn't ...! -... laws that apply to ... ... apply equally to the press, so journalists must stay within the bounds of the law when exercising their 1A freedoms Example: Journalists cannot ... on private property or engage in other ... c... that occurs during a protest under the guise of g... ... However, police cannot arrest journalists in retaliation for ... c... or to prevent reporting on a ... d... In addition, most courts have recognized the 1A right of access does not permit government officials to deprive ... journalists of access to information made available to ..., particularly in retaliation for p... n... c... or based on v...! -Some courts have held the government must have "c..." reasons to justify d... treatment, though others have found a r... basis sufficient -The press has no right of ... a... to information and can be ... from crime and disaster scenes to the same extent as the ... ... Right to r... The 1A generally protects ... and ... r... of government officials engaged in their ... in a ... p..., including police officers performing their r... (during a protest or otherwise) -Though the Supreme Court hasn't addressed the issue, ... federal courts have recognized this ... right to ..., reflecting a g... c... on the matter! (Reflecting the dramatic increase of c... ..., these cases have also recognized the right to ... n... and a... information, which form the basis of the right to ..., applies to ... c... as well as ...!) In spite of this growing consensus, journalists may encounter limitations to this right to ..., depending on the ... and c...! (e.g., whether this recording was made openly or secretly) -Courts have held the right to ... may be subject to reasonable ..., ... and ... restrictions though these are less applicable in ... places! -It is illegal in most states to s... ... a private conversation without the ... of at least ... ..., or in some states, ... parties! (Reporter's Recording Guide for information on each state's law about recording - Alabama requires the c... of just ... party/person involved) -Journalists ... protest activities can increase their chances of ... ... protection and reduce their risk of ... by .. themselves as the ..., not ... with ... ..., and ... from.a s... ... if possible! Civil rights lawsuits If police officers prevent journalists from ... or ... or ... them for doing so, journalists may be bale to bring a ... ... a... against the officers pursuant to 42 U.S.C. § 1983 under theory the officer violated the plaintiff's ... rights under the ... or ... ...! -Whether a police officer has ... im... against such a claim depends on whether the officer's conduct "violates c... e... s... or c... rights of which a ... p... would have k...!" When officers ... or ... a journalist simply for reporting the news, and that journalist is ... with the law, this clearly violates the ... ... and the journalist would have a valid claim under § 1983 -Whether a right to ... will be found to be "c... e..." depends on the particular ... and j...! The clear trend in the laws is a court will find a right to ... to be "c... e..." even if the relevant ... ... c... has yet to do so! No ... has held a right to ... doesn't exist!

Reporters Committee for Freedom of the Press: Police, Protestors, and the Press: The United States has seen waves of mass demonstrations and political protests in recent years. Press coverage of these events has been vital to communicating protestors' concerns to the government and the public. Yet in 2017, the most dangerous place in the U.S. for a journalist was at a protest. According to U.S. Press Freedom Tracker, nearly half of all press freedom incidents - such as arrests and attacks on journalists, as well as searches and seizures of newsgathering equipment - occurred at protests. This guide aims to help journalists understand their rights at protests and avoid arrest when reporting on those events. Summarizes legal landscape and provides strategies and tools to help journalists avoid incidents with police and navigate them successfully should they arise. Guide does not replace the legal advice of an attorney. Journalists with additional questions or in need of assistance finding lawyer should contact Reporters Committee's hotline by submitting a request. If journalists need emergency assistance outside normal business hours, call the hotline. (Updated in June 2020) Overview of the Law: Journalists covering protests have the same rights as other members of the public to observe, photograph, and record in public places. The First Amendment protects journalists' fundamental free speech, press, and assembly rights, which includes protection from arrest for negative news coverage or to prevent reporting on public demonstrations. Police may not prevent journalists from covering protests if the journalists are in a place where the public is allowed, and they are not disrupting or interfering with law enforcement. Simply being near a protest or other newsworthy event is not a crime. However, journalists can be arrested if police have probable cause to believe a journalist broke the law while reporting - example, by trespassing or disobeying a police order to disperse. An increasing number of courts have also recognized a 1A to record police in the public performance of their jobs, though the interpretation of this right varies by state. Both the Fourth Amendment and the Privacy Protection Act of 1980 protect journalists from having their person and belongings searched and seized. First Amendment Protections Freedom of Speech and of the Press The First Amendment safeguards the right to freedom of speech and the press, which are fundamental liberties "at the foundation of free government." The government may not use police power or other means to arbitrarily or unnecessarily interfere with those freedoms. In fact, the purpose of these rights was to foster public discussion free of government interference. Right to gather news generally Freedom of the press includes some protection for the right to collect and disseminate news, but this right is not absolute. General laws that apply to all citizens apply equally to the press, so journalists must stay within the bounds of the law when exercising their 1A freedoms. Example: Journalists cannot trespass on private property or engage in other unlawful conduct that occurs during a protest under the guise of gathering news. However, police cannot arrest journalists in retaliation for negative coverage or to prevent reporting on a public demonstration. In addition, most courts have recognized the 1A right of access does not permit government officials to deprive certain journalists of access to information made available to others, particularly in retaliation for past news coverage or based on viewpoint. Some courts have held the government must have "compelling" reasons to justify differential treatment, though others have found a reasonable basis sufficient. The press has no right of special access to information and can be excluded from crime and disaster scenes to the same extent as the general public. Right to record The 1A generally protects filming and audio recording of government officials engaged in their duties in a public place, including police officers performing their responsibilities (during a protest or otherwise). Although the Supreme Court has not addressed the issue, six federal appellate courts have recognized this constitutional right to record, reflecting a growing consensus on the matter. Reflecting the dramatic increase in citizen journalism, these cases have also recognized the right to gather news and access information, which form the basis for the right to record, applies to private citizens as well as journalists. Notwithstanding (In spite of) this growing consensus, journalists may encounter limitations to this right to record, depending on the state and circumstances (e.g., whether this recording was made openly or secretly). Courts have held the right to record may be subject to reasonable time, place, and manner restrictions, though these are less applicable in public places. In addition, it is illegal in most states to surreptitiously (secretly) record a private conversation without the consent of at least one party, or in some states, all parties. Reporter's Recording Guide offers information on each state's laws about recording (Alabama requires the consent of one person/party involved). Journalists recording protest activities can increase their chances of 1A protection and reduce their risk of arrest by identifying themselves as the press, not interfering with law enforcement, and recording from a safe distance, if possible. Civil rights lawsuits If police officers prevent journalists from recording or arrest or attack them for doing so, journalists may be able to bring a civil rights action against the officers pursuant to 42 U.S.C. § 1983 under a theory the officer violated the plaintiff's constitutional rights under the 1st or 4th Amendment. Whether a police officer has qualified immunity against such a claim depends on whether officer's conduct "violates clearly established statutory or constitutional rights of which a reasonable person would have known." When officers arrest or assault a journalist simply for reporting the news, and that journalist is complying with the law, this clearly violates the 1A, and the journalist would have a valid claim under § 1983. Whether a right to record will be found to be "clearly established" depends on the particular circumstances and jurisdiction. The clear trend in the law is that a court will find a right to record to be "clearly established" even if the relevant federal circuit court has yet to do so. No circuit has held that a right to record does not exist!

Regulation of Non-obscene Erotic Material Sexually Oriented Businesses (SOBs) -... regulation -... ... regulation Although ...-..., courts apply "... ..." standard for reviewing laws, similar to "..., ..., and ... restrictions" Zoning regulations of SOBs allowed if: -Designed to decrease or reduce ... ... of SOBs -Serves a ... ... ... -Does not completely ... all SOBs in the municipality and unreasonably limit ... ... of ... Expressive conduct regulations of SOBs allowed if they: -Serve a ... ... ... unrelated to the ... of speech and -Are ... ... (not substantially ... than necessary) to serve the interest Regulation of Non-obscene Erotic Material... Erotic Materials Online Since 1996, Congress has repeatedly attempted to limit the spread of ... erotic materials online: 1996 Communications Decency Act (CDA) -Made it a crime to ... ... material or to ... ... material to be ... over public computer networks to which ... have access -Provisions protecting minors held ... by the Supreme Court 1998 Child Online Protection Act (COPA) -Prohibited Web sites from ... ... ... material to ... -Supreme Court considered law a ...-... restriction and applied ... ..., held the law to be ... (never took effect) 2001 Children's Internet Protection Act (CIPA) -Requires ... ... to install ...-... ... on their ... -Supreme Court ... the law, finding it balances ...s' rights to receive information with shielding ... from sexual content

Zoning Expressive conduct Content-based, intermediate scrutiny, time, place and manner restrictions Secondary effects Substantial government interest Ban, alternative avenues of communications Substantial government interest, content Narrowly tailored (broader) Transmit indecent, allow indecent, transmitted, minors Unconstitutional Knowingly transmitting harmful, minors Content-based restriction, strict scrutiny, unconstitutional Public libraries, anti-pornography filters, computers Upheld, adults', children

The 1A Protection of News Gathering The 1A generally provides ... ... p... for journalists or exemption from g... a... laws when they gather news!!! Arguments that the constitutional protection of a free press allows a journalist to bend or break ... and ... l... when gathering news is typically ... by the courts! Example: U.S. District Court in MD ... to d... charges of transporting and receiving CP against a freelance journalist who attempted to block the prosecution arguing he was gathering news -Matthews claimed law enforcement officials were too passionate in their prosecution of Internet users and news stories resulting from his investigation would reveal this overly aggressive official action [If law enforcement officials are doing something improper in investigation, the court does not understand how the defendant would uncover malfeasance by r.../d... the materials h...] "It is well settled the 1A does not grant the press a... r... from laws of ... a...!" -4th Circuit affirmed decision and ... Matthews' assertion the ... ... entitled him to assert a legitimate-journalistic-purpose defense to conviction under CP -Citing Supreme Court decision, "The ... ... does not provide a l... on either the reporter or his news sources to v... valid ... l...!" (Branzburg v. Hayes) Most reporters don't violate ... s... to investigate how the police enforce those s... - BUT reporters do break other laws The courts are no more ... of these actions either! Trespass -An in..., un... e... onto land that is o... or p... 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 a... entry or by going into places beyond where they have p... may be held liable! -Reporters may face both ... l... and ... p... "There is no journalists' p... to t...!" Reporters do not have the right to trespass on ... property or ...-owned property Example: Reporter (Wells) of East Valley Tribune near Phoenix sought to interview a recently fired police officer named Lovelace. Lovelace was involved in a fatal shooting and charged with second-degree murder. Wells went through the closed but unlocked gate, posted with a "no trespassing" sign and entered his property. Reporter was told by wife to leave. He left peacefully, but a judge would uphold his conviction for misdemeanor criminal trespass ($300 fine and year of probation) "Reporters who are in violation of a c... ... s... are not exempt from prosecution just because they are exercising a ... ... right" Example: Washington Post reporter and Huffington Post reporter arrested at restaurant and charged with trespass and interfering with a police officer while reporting on the protests in Ferguson, MO. Detained in a McDonald's while covering demonstrations. WP reporter charged with trespassing on private property and interfering with a police officer's performance of his duties for ... to l... the McDonald's after being asked to. Charges dropped as part of settlement Example: Police at Liberty University pursued trespassing charges against two journalists police alleged made u... campus visits while reporting on the school's response to the pandemic. Journalists accused of ignoring "no trespassing" signs placed on the entrance of the ... university's campus! Prosecutors did not press forward after talking with school's president Not all reporters who enter ... p... un... are necessarily trespassing! Whether or not the owner or occupant of the property asks the ... to ... is a critical factor Example: Woman who ... CBS TV crew to accompany crisis intervention team that entered her home was later unable to maintain the visit was a trespass! The ... is invited to visit some kinds of ... p..., and the press is part of the ...! Example: ABC sent camera crew to secretly film eye exams being given to patients at ophthalmologist. Exams were being administered in the portion of the business ... to customers. 7th Circuit rejected trespass action brought by owners of property, the offices were ... to anyone who sought ophthalmologic services offered by the business Example: Boring v. Google, Inc. ruled in favor of Pennsylvania couple who lived on a private road posted with a sign reading "Private Road, No Trespassing" Couple sued after discovering Google took photos of their residence including swimming pool in their residence driveway months before without a privacy waiver or authorization [Google entered on ... p... without p... - is a trespass, 3rd Circuit] Is it a trespass to photograph or film a person above their home or other ... p... using a HELICOPTER to get desired images? -It depends on how ... the helicopter passes! A news helicopter hovered for 10 minues above home of Bevers to obtain story on poor conditions of rental properties. Bevers sued for trespass -Texas appellate court: "One of the key things in ascertaining whether a flight through airspace constitutes a trespass is the ... of the aircraft. Landowners have no right to exclude overflights above their property because a... is part of the ... d...!" -Flights within the im... reaches of the ... next to the land may constitute a trespass and that also in... s... with the ... and ... of the underlying land. In the Bevers case, a single 10-minute hover over her property 3-400 feet doesn't rise to the level of "s... in..." with the u... and e... of the underlying land This takes on added importance today as journalists increasingly use ... to capture images -Roots in a 1946 decision by Supreme Court (this notion of an aerial trespass) "If the landowner is to have full enjoyment of the land, he must have exclusive control of the im... reaches of the enveloping atmosphere" Is no bright-line rule on what constitutes the im... reaches above someone's property Is it a trespass if a reporter accompanies ... o... (like police or firefighters) onto the p...? Can these ... a... give permission to the press to il... enter ... p...? The simple answer is...? The courts have ruled not only are reporters potentially ... for d..., but the law officers may themselves be at ... for bringing reporters along U.S. Supreme Court - WILSON V. LAYNE (1999) ... ruling, when law enforcement officers permit reporters to accompany them when they enter private homes to conduct searches or arrests, officers ... the right of residential privacy at the core of the ... ...!!! 1. Wilson v. Layne - members of a joint federal and local law enforcement task force invited a WP reporter and photographer to accompany them when they arrested fugitives in MD Could the property owners sue the ... a... for violating their ... ... rights against an il... s...? -... a... attempted to justify their invitations by arguing close-up coverage would assist public in understanding law enforcement problems and help police get more public cooperation -"The possibility of good public relations for the police is simply ... enough to justify the ride-along intrusion into a private home." (Chief Justice Rehnquist) -But, because the law concerning ... r...-a... had not been developed when arrests first took place, Supreme Court ruled it would be unfair to subject the police officers in this case to ... d... for their behavior. Officers would not have foreseen their behaviors to ... the Constitution -The Court did not rule on the liability of .../... who enter premises with permission of the police 2. Hanlon v. Berger - agents of U.S. Fish and Wildlife Service invited reporters and photographers from CNN to accompany them as searched property of MT rancher for evidence they were illegally poisoning wildlife -Remanded to the 9th Circuit in light of the Supreme Court ruling regarding the ... of the police -9th Circuit initially ruled because of the c... c... between the journalist and government agents, the reporters were actually "... a..." or "... a..." and could be subject to the same ... ... action brought against the federal officers -After the Court decision, 9th Circuit ruled journalists ... enjoy the kind of q... im... that shielded agents in the Wilson case, reinstated Berger's ... ... claim, and reversed lower court's d... of claims for trespass and IIED Example: Frederick v. Biography Channel U.S. District Judge ... to d... complaint filed by two women over collaborative arrangement between police of Naperville, IL and several media organizations -Media defendants worked very closely with Naperville police to gather footage for reality show "Female Force" - unflattering footage of two women who filed the lawsuit (one was arrested and specifically objected to being filmed) -"A s... relationship between a ... b... and a ... p... [press] can transform the ... p... into a ... a...!" -By acting closely with the ... o..., the media defendants were transformed into ... a... [two women could proceed with lawsuit against defendants for violating their ... ... right against unreasonable search and seizures] Example: 10th Circuit found employees of show "Dateline" ... violate the ... ... rights of Clark when they secretly filmed a seminar he conducted for his company BCA -Plaintiff claimed Dateline employees engaged in an unreasonable search and seizure under ... ... when they used fake credentials supplied by law enforcement officials in Alabama (who were investigating Clark and BCA) -10th Circuit did assume media defendants were either an agent for the Alabama officials or engaged in concerted activity with them to meet the joint action test BUT the misrepresentations ... violate the ... ... -Government agents sending willing operatives to obtain information freely revealed to those operatives. This was a type of deception generally found ... because it involved no e... or im... c...! -Even if Dateline employees were seen as ... a... with law enforcement, their misrepresentations were not a ... ... violation! In general, reporters wanting to enter ... p... need the ... of the occupant or owner of the p...; Police and firefighters are ... to give the press this ...! There are a myriad of c... laws in most cities and states (laws like interfering with an officer in the execution of their duty), that may be the basis for an ... even if a ... isn't involved! When applied to the press, these laws might be ... but such a ruling will not be made until weeks-months after journalists have been ...!

The First Amendment Protection of News Gathering The 1A generally provides no special protection for journalists or exemption from generally applicable laws when they gather news. Arguments that the constitutional protection of a free press allows journalist to bend or break criminal and civil laws when gathering news are typically rejected by the courts! 1998, U.S. District Court in MY refused to dismiss charges of transporting and receiving child pornography against freelance journalist who attempted to block the prosecution by arguing he was gathering news, not child pornography. Matthews said law enforcement officials were too zealous (passionate) in their prosecution of Internet users and the news stories resulting from his investigation would reveal this overly aggressive official action. But the court wasn't moved. "It is well settled the 1A does not grant the press automatic relief from laws of general application" "If law enforcement officials are doing something improper in their investigations the court does not understand how the defendant would uncover malfeasance by receiving and disseminating the materials himself" 2000, 4th Circuit affirmed the decision and rejected Matthews' assertion the 1A entitled him to assert a legitimate-journalistic-purpose defense to conviction under federal child pornography laws. The appellate court cited with approval the Supreme Court's decision in Branzburg v. Hayes for the proposition that the 1A does not provide a "license on either the reporter or his news sources to violate valid criminal laws" Most reporters do not violate criminal statutes, as Matthews was charged with doing, to investigate how the police enforce those statutes. But reporters do break other laws. Overview of some of these, show the courts are no more tolerant of these actions either! 1. Trespass: Trespass is an intentional, unauthorized (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! Reporters may face both civil liability AND criminal prosecution when they trespass. Journalists need to remember, as one federal appellate court wrote in 1995, "there is no journalists' privilege to trespass!" What's more, reporters do not have the right to trespass on private property or even government-owned property. Examples, The dangers of journalists being charged with criminal trespass or other generally applicable charges: Reporter Wells of East Valley Tribune near Phoenix, AZ sought to interview a recently fired police officer named Lovelace. Lovelace had been involved in a fatal shooting and was charged, at the time, with second-degree murder. Wells went through closed but unlocked gate, posted with a "no trespassing" sign, and entered Lovelace's fenced property. The reporter walked to the front door, rang the bell and was told by the woman who answered (Lovelace's wife) to leave. Wells left peacefully, but in 2004 a judge upheld Wells' conviction for misdemeanor criminal trespass - fined $300 and sentenced to a year of probation - based on the incident. In upholding a ruling by a lower-court judge, Judge Jones wrote "reporters who are in violation of a criminal trespass statute are NOT EXEMPT from prosecution simply because they are exercising a 1A right" The Arizona criminal trespass law provides: "A person commits criminal trespass in the first degree by knowingly entering or remaining unlawfully in a fenced residential yard." 2014, Washington Post reporter and Huffington Post reporter arrested at a restaurant and later charged with trespass and interfering with a police officer while reporting on the widely covered protests in Ferguson, MO. Lowery, at time reporter on Post's national desk, and Reilly of HP, were detained in a McDonald's while covering demonstrations sparked by a white police officer fatally shooting an unarmed Black man. Lowery was charged with trespassing on private property and interfering with a police officer's performance of his duties for refusing to leave the McDonald's after being asked to leave by a police officer. In 2016, charges were dropped as part of settlement in which reporters agreed not to sue the county over the incident. Police at Liberty University in 2020 pursued trespassing charges against two journalists who police alleged made unauthorized campus visits while reporting on the school's response to the COVID pandemic. The journalists were accused of ignoring "no trespassing" signs placed on entrances of the private university's campus. Prosecutors decided not to press forward with charges after talking with school's president. "Certainly probable cause here to charge these two individuals based on their actions and the law of Virginia" the town's prosecutor said. "But we are electing not to proceed with criminal prosecution given the input we have from Liberty University." Not all reporters who enter private property uninvited as necessarily trespassing! Whether or not the owner or occupant of the property asks the reporter to leave is a critical factor. A woman who permitted a CBS TV crew to accompany a crisis intervention team that entered her home was later unable to maintain the visit had been a trespass, a court ruled. The public is invited to visit some kinds of private property, and the press is part of the public. ABC sent camera crew to secretly film eye examinations being given to patients in an optical business. The exams were being administered in the portion of the business open to customers who wandered in seeking information, medication and other services. 7th Circuit rejected a trespass action brought by owners of the property, saying there was no invasion in this case of any of the interests that the tort of trespass is designed to protect, namely, the use and enjoyment of one's property without interference. The offices were open to anyone who sought ophthalmologic services offered by the business. The activity in this office was not disrupted; there was no invasion of anyone's private space. In a modern twist on trespass involving Google's Street View program, a federal appellate court in 2010 in Boring v. Google, Inc. ruled in favor of Penn. couple who lived on a private road posted with a sign reading "Private Road, no Trespassing" The Street View program "offers free access on the Internet to panoramic, navigable views of streets in and around major cities of the US. To create the Street View program, representatives of Google attach panoramic digital cameras to passenger cars and drive around cities photographing the areas along the street." The couple sued after they discovered Google had taken colored imagery of their residence, including the swimming pool, from a vehicle in their residence driveway months earlier without obtaining any privacy waiver or authorization" Ruling in favor of the couple on their trespass claim, 3rd Circuit observed "Borings have alleged that Google entered upon their property without permission. If proven, this is a trespass, pure and simple." Is it a trespass to photograph or film a person from above his or her home or other private property using a helicopter to get the desired images? It all depends on how high the chopper passes! A news helicopter hovered for 10 minutes above the home of Gail Bevers to obtain footage for a story about the poor condition of rental properties. Bevers who was "scared to death" by the helicopter, sued for trespass. 2002, Texas appellate court hearing her case observed "one of the key facts in ascertaining whether a flight through airspace constitutes a trespass is the ALTITUDE of the aircraft" The court noted while "landowners have no right to exclude overflights above their property because airspace is part of the public domain," flights that are within the "immediate reaches of the airspace next to the land" and that also interfere substantially with the use and enjoyment of that land may constitute a trespass. In Bevers' case, a single ten-minute hover over her property at 300 to 400 feet does not as a matter of law rise to the level of 'substantial interference' with the use and enjoyment of the underlying land.' The appellate court affirmed summary judgment for media defendants. The Bevers case takes on added importance today as journalists increasingly use drones to capture images. Notion of an aerial trespass, has its early roots in a 1946 Supreme Court decision in which justices remarked "if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere" There is no bright-line rule regarding what constitutes the immediate reaches above a person's property. Journalists who use drones also face potential liability under the privacy theory of intrusion into seclusion. Is it a trespass if a reporter accompanies government officials, police or firefighters onto the property? Can these government agents give permission for the press to illegally enter private property? The simple answer is NO. And the courts have ruled not only are reporters potentially liable for damages in such a case, but the law officers themselves may be at risk for bringing reporters along. 1999, U.S. Supreme Court unanimously rule that went law enforcement officers permit reporters to accompany them when they enter private homes to conduct searches or arrests, the officers violate "the right of residential privacy at the core of the Fourth Amendment" Two cases found their way to the Supreme Court: a. Wilson v. Layne - when members of a joint federal and local law enforcement task force invited a Washington Post reporter and photographer to accompany them when they arrested fugitives in Rockville, MY just outside nation's capital. b. Hanlon v. Berger - agents of the U.S. Fish and Wildlife Service invited reporters and photographers from CNN to accompany them as they searched property of a Montana rancher for evidence the property owner was illegally poisoning wildlife The issue the Supreme Court focused on was whether the government agents who brought the journalists onto the private property could be held responsible for civil rights violations; could the property owners sue the government agents for violating their Fourth Amendment rights against an illegal search? The government agents attempted to justify their invitations by arguing the such close-up coverage of their action would assist the public in understanding law enforcement problems and help the police in getting more public cooperation. "The possibility of good public relations for the police is simply not enough to justify the ride-along intrusion in to a private home," Chief Justice Rehnquist wrote for court. Chief justice quoted almost 400-year-old British court ruling in supporting its decision: "The house of everyone is to him as his castle and fortress, as well for his defense against injury and violence, for his repose." But because the law concerning media ride-alongs had not been developed when these arrests first took place, the high court ruled it would be unfair to subject the police officers in this case to money damages for their behavior. The officers could not have clearly foreseen that what they did would be a violation of the Constitution. The court did not rule on the matter of the liability of reporters and photographers who enter private premises with the permission of police. The Berger case was remanded to the 9th Circuit in light of high-court ruling regarding the liability of the police. Before the case reached the Supreme Court, in an earlier decision the 9th Circuit ruled because of the close cooperation between the journalists and government agents who searched the Montana ranch, the TV reporters and producers were actually "state actors" or "joint actors" with wildlife agents and could be subject to the same 4th Amendment action brought against the federal officers. AFTER the Supreme Court decision, 9th Circuit ruled journalists did not enjoy the kind of qualified immunity that had shielded the government agents in the Wilson case, reinstated Berger's 4A claim against the reporters, and reversed a lower court's dismissal of claims for trespass and IIED against media defendants. 2001, Berger finally reached confidential settlement with CNN, bringing case to close for undisclosed amount of cash. 2010 case, Frederick v. Biography Channel, U.S. District Judge Shadur refused to dismiss complaint filed by two women over what judge called "highly disturbing" collaborative arrangement between police of Naperville, IL and several media organizations including Biography Channel and A&E TV Networks. Media defendants worked very closely with the Naperville police to gather footage for a reality TV show called "Female Force"" - unflattering footage of two women who filed the lawsuit, one of whom was being arrested and specifically objected to being filmed. The truly disturbing part was after a Naperville officer detained the two women, he deliberately waited for the arrival of the camera crew that was assigned to film, doing so for the express purpose of having the arrest filmed for the show. Rather than readily and immediately arresting one of the two women who had an outstanding warrant, the officer delayed and stalled UNTIL cameras arrived! "A symbiotic relationship between a governmental body and a private party (Biography Channel and A&E TV Networks) can transform the private party into a government actor" Shadur found there was a formal contract between the City of Naperville and the media defendants. The bottom line is by acting so closely with the government officials, the media defendants were TRANSFORMED into government actors. The two women thus could proceed to sue the media defendants for violating their 4th Amendment right against unreasonable searches and seizures, just as case in Hanlon v. Berger. 2014, however, 10th Circuit held employees of NBC Universal show "Dateline" did not violate the 4th Amendment rights of Clark when they surreptitiously (secretly) filmed a seminar he conducted for his company, Brokers' Choice of America (BCA). Clark claimed the Dateline employees engaged in an unreasonable search and seizure under the 4A when they used fake insurance agent credentials supplied by AL law enforcement officials, who were investigating Clark and BCA, to enter BCA's property and secretly tape the seminar. The appellate court assumed that "Dateline" was acting as "either an agent of the AL officials or sufficiently engaged in concerted activity with them to meet the joint action test" Yet, the court found "Dateline" employees' misrepresentation of themselves as insurance agents didn't violate the 4A and was "instead, classic ruse of misrepresented identity" The court said "in a classic case of government agents sending willing and available operatives to obtain info freely revealed to those operatives. The fake insurance agents credentials supplied by AL officials fit easily into the types of deception courts have generally found permissible because it involved no coercion, express or implied" Even if "Dateline" employees were assumed to be joint actors with law enforcement, their misrepresentation was not a 4A violation. In general, reporters who want to enter private property need the PERMISSION of the occupant or the owner of the property. Police and firefighters are unable to give the press this permission. There are myriad catchall laws in most cities and states, laws like interfering with an officer in the execution of their duty, that might be the basis for an arrest even if a trespass is not involved. When applied to the press, these laws might be unconstitutional, but such a ruling will not be made until weeks or months after the journalist has been arrested.

2. Restrictive/Gag Orders Aimed at Trial Participants While the law regarding restrictive orders aimed at the press is generally c... and has e... swiftly since 1976, the law regarding restrictive orders barring participants from speaking or publishing about a case is l... d... and is s... d...! The theory behind gagging the participants in a trial is simple: If a..., p... ..., w... and others are forbidden from speaking about the case, r... will be denied access to a considerable amount of material that might very well be p...! S... will not be w... or b.., and p... ... will not see or hear such information! These gag orders are not ..., nor are they u..., especially in h...-... cases involving c... or other h...-v... d...! These orders are often quite comprehensive Example When the federal government prosecuted Scrushy, the former chairman and CEO of HealthSouth, a giant HMO, the case generated substantial publicity. A federal judge in AL issued a broad-based restrictive order to block e... s... by parties and the attorneys The order said: *No ... s... until the f... v... by any participant, including witnesses, concerning 1. materials provided in discovery in preparation for the case 2. character, credibility, reputation or criminal record of a party or witness, or expected testimony of a party or witness 3. matters that counsel should know would be inadmissible at the trial and would create a substantial risk of prejudicing a trial jury and 4. with the exception of Scrushy personally, any opinions as to the defendant's guilt or innocence *Participants must remove from their existing ... p... ... c..., a... of prosecutorial misconduct and i... discovered in the course of cr... d... *Counsel for parties must avoid commenting in c... p... that are not filed under s... on evidence that is irrelevant to legal matters involved in the case *All court personnel must not disclose any information relating to the case that is not part of the p... r... But sometimes judges r... requests for such orders! The judges in the Trayvon Martin murder case r... requests from the prosecution to stop lawyers for defendant from talking about the case outside the courtroom, using a Web site that focused on legal issues, using social media to comment about the case For many years t... j... were generally f... to issue restrictive orders aimed at participants with l... j...! In recent years however, ... c... are applying s... r... that courts must follow! Example -4th Circuit o... a gag order issued by a federal district court judge in the criminal trial against Blankenship, former CEO of Massey Energy Co., who faced charges from mine explosion that killed 29 people -The sweeping gag order, issued the day after a grand jury returned an indictment, prohibited both parties, counsel, potential trial participants, court personnel and others from making any ... statements to a... member of the ... -None of the parties in the case sought the order! More than two dozen news organizations filed appeals. 4th Circuit issued a short per curiam non-precedential ruling o... the injunction, "although we commend the district court's proactive effort to ensure the maximum extent that Blankenship's right to a fair trial before an impartial jury will be protected, we are constrained to conclude the order here cannot be sustained" -Michigan Court of Appeals o... a gag order prohibiting prosecutors and defense lawyers from discussing a case involving criminal charges against two government employees related to the construction of a county jail -The Wayne County Jail Project came to a halt when construction was a quarter complete because of $100 million in cost overruns. The failure of the project became the subject of public and media scrutiny -When a grand jury indicted former chief financial officer and county attorney on criminal charges related to the jail construction process, Wayne Circuit Judge issued the gag order to preserve the defendants right to a fair trial -When the Detroit Free Press challenged the order, Michigan Court of Appeals ruled the order was v... and o... because it applied to "a... potential trial participants" and prevented "a... ... statements" regarding the case, regardless of the c... of the discussions The court also held the gag order operated as a p... r... on the freedom of the press. Although the gag order did not directly prohibit the ... from discussing the case, it prohibited "the m... m... s... of i... from discussing the case with the ..." Therefore, the court reasoned, the right of the ... to obtain information was also impaired! Other courts have used similar reasoning to allow ... o... to sue when trial participants are barred from discussing cases with the ...! Example Several ... organizations intervened in a high-profile murder trial to contest a gag order preventing trial participants from speaking to the .. about certain subjects related to the trial On appeal, the GA Supreme Court acknowledged ... organizations could sue even though the order didn't a... to members of the ...! The court ruled the trial court had failed to justify its order with any reasonable likelihood of p... should trial participants be allowed to talk to the ...! Example -AL Supreme Court overturned a gag order focused on s... m... content and other o... postings -Two lawsuits against A-1 Exterminator Company, After A-1 discovered the law firm representing the plaintiffs in the case featured the case prominently on their W... ... and ...k page, the company sought a protective order banning ... statements by the firm -One of the trial court judges ordered the law firm to remove all mention of either case from their W... ..., ...k page, s... m... and "related w... s... e..." On appeal, the AL Supreme Court ruled while it was important to make sure the j... p... remained untainted, the protective order issued by the trial judge was o... -The court concluded "the trial court should balance its interest in protecting A-1's right to fair trial against the ... ... rights of the plaintiffs and their attorneys; any protective order must be narrowly tailored so it uses the least restrictive means necessary to protect A-1's right to a fair trial" -CA Court of Appeals overturned an order from a trial court for an attorney to remove two pages from her W... ... discussing cases similar to one being tried in court. The court concluded the order was more extensive than necessary to advance the government's interest and there were other "a... m... of addressing the threat of ... contamination in the case" In a h... u... case from New York, a trial court ... a request for a gag order against a witness in a racketeering case who just happened to be a member of the ...! -Gotti Jr. was indicted for racketeering and other offenses that were related to the attempted murder of Sliwa, man who founded the Guardian Angels, a community-based anti-crime group -For years S insisted that G ordered him killed, and he said so repeatedly on a talk radio program he aired on WABC-AM. The show has a large listenership -G asked the court to bar S from making such ... statements, or talking in any way about the merits of the case since he would almost certainly be a witness at G's trial. The court agreed the comments could be p..., but said a restrictive order would be less effective than a thorough v... ... and strong jury instructions. The court said it hoped that S would respect G's right to a fair trial and refrain from making p... comments on the radio, but that a gag order was a l... r... it was not willing to impose at the time ***... may specifically be barred under c... r... or c... of c... from making ... comments on case, whether or not a restrictive order has been issued! The U.S. Supreme Court made this clear in a 1991 ruling that focused on an alleged violation of general c... r... that applied to ...s -A ... named Gentile represented a client charged with taking money and drugs from a safety deposit box rented by undercover police agents. Held a press conference in which he claimed police were using his client as a scapegoat. Gentile said his client was innocent, that a police officer was the likely thief who took the money and drugs, and described some of the witnesses for the prosecution in the case as drug dealers -Gentile's client was acquitted, but the NV Supreme Court ruled the ...'s comments at the press conference violated a c... r... that limits what an ... can say about a pending case -The rule prohibited ... in a criminal case from making p... statements about the character, credibility, reputation or criminal record of a party, suspect or witness. The rule did provide a "safe haven" for ... who were permitted to "elaborate the general nature" of the defense. The Supreme Court ruled by a ...-... vote that states may prohibit out-of-court statements by ... if these statements have a s... l... of ma... p... the proceeding! But the court also ruled by the same margin the NV rule prohibiting ... comments by attorneys was a violation of Gentile's constitutional rights because it was too v...! The so-called "safe haven" provisions contained terms so im... they failed to give f... n... of what is p... and what is f..., which could lead to d... enforcement of the rule! The Court said rules like these are permissible limits on free speech as long as they s... o... s... what can and cannot be said!

Restrictive (Gag) Orders Aimed at Trial Participants While the law regarding restrictive orders aimed at the press is generally clear and has evolved swiftly since 1976, the law regarding restrictive orders barring participants from speaking or publishing about a case is less distinct and is still developing! The theory behind gagging the participants in the trial is simple: If attorneys, police officers, witnesses and others are forbidden from speaking about the case, reporters will be denied access to a considerable amount of material that might very well be prejudicial. Stories will not be written or broadcast, and potential jurors will not see or hear such information. Gag orders aimed at the trial participants are not common, nor are they unusual, especially in high-profile cases involving celebrities or other high-visibility defendants. These orders are often quite comprehensive. Example: When the federal government prosecuted Richard Scrushy, the former corporate chairman and CEO of HealthSouth, a giant HMO (health maintenance organization), the case generated substantial publicity. A federal judge in AL issued a broad-based restrictive order to block extrajudicial (out-of-courtroom) statements by parties and the attorneys. The order said: *No extrajudicial statements until the final verdict by any participant, including witnesses, concerning 1. materials provided in discovery in preparation for the case; 2. character, credibility, reputation or criminal record of a party or witness, or the expected testimony of a party or witness; 3. matters that counsel should know would be inadmissible at the trial and would create a substantial risk of prejudicing a trial jury; and 4. with the exception of Scrushy personally, any opinions as to the defendant's guilt or innocence *Participants must remove from their existing Web pages extrajudicial comments, allegations of prosecutorial misconduct and information discovered in the course of criminal discovery *Counsel for parties must avoid commenting in court papers that are not filed under seal on evidence that is irrelevant to legal matters involved in the case *All court personnel must not disclose any information relating to the case that is not part of the public record But sometimes judges will reject requests for such orders. The judges in the Trayvon Martin murder case in FL refused requests from the prosecution to stop lawyers for defendant Zimmerman from talking about the case outside the courtroom and from using a Web site that focused on legal issues, as well as using social media to comment about the case. For many years, trial judges were generally free to issue restrictive orders aimed at participants with little justification! In recent years, however, appellate courts are applying stricter rules that courts must follow! Example: 2015, 4th Circuit overturned a gag order issued by a federal district court judge in the criminal trial against Blankenship, former CEO of Massey Energy Co., who faced charges stemming from the Upper Big Branch mine explosion in 2010 that killed 29 people. The sweeping gag order, issued the day after a grand jury returned an indictment (formal accusation/charge), prohibited both parties, their counsel, potential trial participants, court personnel and others from making any extrajudicial statements to any member of the media. None of the parties in the case sought the order! More than two dozen news organizations filed appealed. The 4th Circuit issued a short per curiam nonprecedential ruling overturning the injunction, "although we commend the district court's sincere and forthright proactive effort to ensure the maximum extent possible that Blankenship's right to a fair trial before an impartial jury will be protected, we are constrained (forced) to conclude the order here cannot be sustained" 2015, Michigan Court of Appeals overturned a gag order prohibiting prosecutors and defense lawyers from discussing a case involving criminal charges against two government employees related to the construction of a county jail in Wayne County. The Wayne County Jail Project, a 2010 project to construct a $300 million jail in downtown Detroit, came to a halt when construction was a quarter complete because of approximately $100 million in cost overruns. The failure of the project became the subject of public and media scrutiny. When a grand jury indicted former county chief financial officer Sledge and county attorney Collins on criminal charges related to the jail construction process, Wayne Circuit Judge Evans issued the gag order to preserve the defendants right to a fair trial. When the Detroit Free Press challenged the order, Michigan Court of Appeals ruled the order was vague and overbroad because it applied to "all potential trial participants" and prevented "any extrajudicial statements" regarding the case, regardless of the content of the discussions. The court also held the gag order operated as a prior restraint on the freedom of the press. Although the gag order did not directly prohibit the media from discussing the case, it prohibited "the most meaningful sources of information from discussing the case with the media" Therefore, the court reasoned, the right of the media to obtain information was also impaired! Other courts have used similar reasoning to allow media organizations to sue when trial participants are barred from discussing cases with the media! Example: 2018, several news organizations intervened in a high-profile GA murder trial to contest a gag order preventing trial participants from speaking to the media about certain subjects related to the trial. On appeal, the GA Supreme Court acknowledged the media organizations could sue even though the order didn't apply to members of the media! The court ruled the trial court had failed to justify its order with any reasonable likelihood of prejudice should trial participants be allowed to talk to the media! The Alabama Supreme Court overturned a gag order focused on social media content and other online postings in 2014. The case involved two lawsuits against A-1 Exterminator Company for fraud, breach of warranty, negligence and breach of contract. After A-1 discovered the law firm representing the plaintiffs in the case featured the case prominently on their Web site and Facebook page, the company sought a protective order banning extrajudicial statements by the firm. One of the trial court judges ordered the law firm to remove all mention of either case from their Web site, Facebook page, social media and "related web search engines." On appeal, the AL Supreme Court ruled while it was important to make sure the jury pool remained untainted, the protective order issued by the trial judge was overbroad. The court concluded "the trial court should balance its interest in protecting A-1's right to fair trial against the 1A rights of the plaintiffs and their attorneys" and "any protective order must be narrowly tailored so it uses the least restrictive means necessary to protect A-1's right to a fair trial" Similarly, in 2013, CA Court of Appeals overturned an order from a trial court for an attorney to remove two pages from her Web site discussing cases similar to one being tried in court. The court concluded the order was more extensive than necessary to advance the government's interest and there were other "adequate means of addressing the threat of jury contamination in the case" OH Court of Appeals ruled a restrictive order that said "All parties to this action are hereby restrained from issuing any public comments about the pending status of this litigation" was not specific enough to block a litigant from writing a letter to a newspaper responding to an accusation published in the newspaper against his character. Barring comments about pending litigation didn't cover comments made by the litigant in the newspaper, the court said. Finally, in a highly unusual case from NY, a trial court rejected a request for a gag order against a witness in a racketeering case, a witness who just happened to be a member of the media. Gotti Jr. was indicted for racketeering and other offenses that were related to the attempted murder in 1992 of Sliwa, the man who founded the Guardian Angels, a community-based anti-crime group. For years S insisted that G ordered him killed, and he said so repeatedly on a talk radio program he aired on WABC-AM. The show has a large listenership. G asked the court to bar S from making such extrajudicial statements, or talking in any way about the merits of the case since he would almost certainly be a witness at G's trial. The court agreed the comments could be prejudicial, but said a restrictive order would be less effective than a thorough voir dire and strong jury instructions. The court said it hoped that S would respect G's right to a fair trial and refrain from making prejudicial comments on the radio, but that a gag order was a last resort it was not willing to impose at the time Lawyers specifically may be barred under court rules or codes of conduct from making extrajudicial comments on a case, whether or not a restrictive order has been issued! The U.S. Supreme Court made the clear in 1991 ruling that focused on an alleged violation of general court rules that applied to attorneys. A lawyer named Gentile, who represented a client charged with taking money and drugs from a safety deposit box rented by undercover police agents, held a press conference in which he claimed that police were using his client as a scapegoat. Gentile said his client was innocent, that a police officer was the likely thief who took the money and drugs, and described some of the witnesses for the prosecution in the case as drug dealer. Gentile's client was acquitted, but the NV Supreme Court ruled the attorney's comments at the press conference violated a court rule that limits what an attorney can say about a pending case. The rule prohibited attorneys in a criminal case from making prejudicial statements about the character, credibility, reputation or criminal record of a party, suspect or witness. The rule did provide a so-called safe haven for lawyers who were permitted to "elaborate the general nature" of the defense. The Supreme Court ruled by a 5-4 vote that states may prohibit out-of-court statements by attorneys if these statements have a substantial likelihood of materially prejudicing the proceeding! But the court also ruled by the same 5-4 margin the NV rule prohibiting extrajudicial comments by attorneys was a violation of Gentile's constitutional rights because it was too vague! The so-called safe haven provisions contained terms so imprecise they failed to give fair notice of what is permitted and what is forbidden, which could lead to discriminatory enforcement of the rule. The Court said rules like these are permissible limits on free speech so long as they SPELL OUT specifically what can and cannot be said!

Exemption 4: Trade Secrets Trade secrets and ... or ... information obtained from a ... and ... or ... Three-part test 1. The information for which the exemption is sought must be a trade secret or ... or ... in character Example: Recipe for Coke, special sauce at KFC, specific algorithms in an online business, code of an app 2. It must be obtained from a ... (... defined, includes ...) 3. It must be ... or ... Supreme Court has recently clarified what is "..." under the exemption. Commercial information received from outside sources can be withheld if it is "c... treated as ... by its ... and provided to the ... under an a... of ..." Exemption 5: Working Papers/Lawyer-Client privileged materials ... [between] and ...-agency [within/among] memorandums and letters which would not be available by law to a party other than an agency in ... with the agency Documents, internal memoranda, legal material Covers "p...-..." and "..." documents Include: R..., a... o..., d... documents, pr..., su..., other su... documents reflecting the personal opinions of the writer Example: The head of an agency asks fellow members on their opinions for a new regulation. Asking them what they think, regulate or not, protecting this decision process (documents that come before the final decision and are important to this decision-making process) Not allowed to access internal documents on decision-making during the reasoning/deliberation - must be enough time after the final decision to access. Wait enough time can receive from the National Archives and Records Administration (Example: Reasons Reagan administration overturned the Fairness Doctrine - wait for enough time to pass after this final decision) Executive Privilege a. Not ... b. Construed ... to balance president's need for ... and frank advice with obligations of ... ... Example: Can file a FOIA request and ombudsperson subsequently - the courts balance the president's need for ... and the obligation of ... ...! -Agencies can withhold "deliberative process" documents for ... years (Amended in FOIA Improvement Act of 2016) Exemption 6: Personal privacy files ..., ... files and ... files the disclosure of which would constitute a ... ... of ... Example: Veteran at Veterans Affairs (hospital), ... records (second blank) -Key is not the ... at issue, but the ... contained in a ... and whether it is ... ... in nature Example: ... file (first blank) - this file may be sent to a reporter, but it is redacted where there might be h... p... material (information on a chronic illness for example) - discussions with an employer In order to be exempt: a. Release of information will constitute an ... of ... ... b. This ... of ... ... is clearly ... [encroaching in a way that is not necessary]

4) Trade secrets uTrade secrets and commercial or financial information obtained from a person and privileged or confidential uThree-part test 1.The information for which the exemption is sought must be a trade secret or commercial or financial in character 2.It must be obtained from a person (broadly, includes corporations) 3.It must be privileged or confidential Supreme Court reversed 8th Circuit decision and clarified what amounts to "confidential" under the exemption. The Court held under Exemption 4 commercial information received from outside sources can be withheld if it is "customarily treated as private by its owner and provided to the government under an assurance of privacy" 5. Working papers/lawyer-client privileged materials -Interagency and intra-agency memorandums and letters which would not be available by law to a party other than an agency in litigation with the agency. -Covers "predecisional" and "deliberative" documents -Recommendations, advisory opinions, draft documents, proposals, suggestions, other subjective documents reflecting the personal opinions of the writer Executive Privilege -Not absolute, construed narrowly to balance president's need for confidentiality and frank advice with obligations of open government -Agencies can withhold "deliberative process" documents for 25 years 6) Personal privacy files -Personnel and medical files and similar files the disclosure of which would constitute a clear invasion of privacy -Key is not the file at issue, but the information contained in a file and whether it is highly personal in nature In order to be exempt 1. Release of information will constitute an invasion of personal privacy 2. This invasion of personal privacy is clearly unwarranted

Exemption 6: Personal Privacy P... and m... files and s... files, the disclosure of which would constitute a clearly u... ... of ... P... and m... files are easy to identify. Courts have more of a problem determining the nature of a "s... file" The key consideration is not the ... of f... at issue, but the ... of in... in the f... that is the object of the FOIA request An individual's m... and p... files contain highly ... information about an individual. A file is a "s... file" if it contains this same ... of ... ...! Not every file that contains ... ... will be considered a s... file! "The test is not merely whether the information is in some sense ..., but whether it is of the same m... - as highly ... in nature - as contained in p... or m... records!" (a U.S. Court of Appeals) A ruling that a file is a m..., p..., or s... file does not automatically bar the ... of data in the file! Establishing that the information or material sought is the same kind of information protected by Exemption 6 is only the first step 2. Court next has to determine The release of this information will constitute an ... of ... And This ... of ... is clearly u... Supreme Court made clear Exemption 6 is not intended to prevent every in... ... of ..., but only such disclosures that constitute clearly u... ... of p... ...! This burden is not terribly ...: U.S. District Court accepted government arguments the release of the voice communications tape-recorded aboard the space shuttle Challenger would be an u... ... of ... (Ruling was made despite the fact a printed transcript of the tape has been previously released) Example: Federal judge ruled Exemption 6 ... prevent the FCC from having to turn over to the NYT net neutrality comment records the paper requested under FOIA FCC in 2017 sought to repeal net neutrality rules enacted in 2015, the public was invited to submit comments to the FCC through commission's electronic filing system. FCC received more than 20 million comments, though many likely submitted by bots and fraudulent email accounts. NYT submitted FOIA request to FCC, seeking IP addresses, timestamps, and user-agent header data related to the public comments the FCC received (IP identifies each device on the internet; user-agent header data contains information about a device, like the operating system and browser version) FCC refused to disclose the records, citing Exemption 6. A federal judge ruled ... FCC. Judge agreed that IP addresses and user-agent headers are "... files" for Exemption 6 purposes, but the judge ruled ... interest in the data outweighed the ... interests protected by Exemption 6 "Disclosing IP addresses and User-Agent headers would help clarify whether or to what extent fraudulent activity interfered with the comment process for the FCC's rulemaking and the extent to which administrative rulemaking may be vulnerable to corruption. This serves as a vital ... interest because of importance of public comments in agency rulemaking" (NYT v. FCC) The judge ruled that any ... of ... that resulted from releasing the information was ...!

6. Personal Privacy Exemption #6: Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy. This exemption shields "personnel and medical files and similar files" Personnel files and medical files are easy to identify. Courts have had more of a problem determining the nature of a "similar file." The key consideration is not the kind of file at issue, but the kind of information in the file that is the object of the FOIA request. An individual's medical and personnel files contain highly personal information about an individual. A file is a "similar file" if it contains this same kind of personal information. Not every file that contains personal information will be considered a similar file. "The test is not merely whether the information is in some sense personal," U.S. Court of Appeals, "but whether it is of the same magnitude - as highly personal in nature - as contained in personnel or medical records" A ruling that a file is a medical or personnel or similar file does not automatically bar the release of data in the file. Establishing that the information or material sought is the kind of information protected by Exemption 6 is just the first step. The court must then determine: 1. The release of this information will constitute an invasion of privacy, and 2. This invasion of privacy is clearly unwarranted The Supreme Court made it clear in 1976 that exemption is not intended to prevent/preclude every incidental invasion of privacy, but rather only such disclosures as constitute clearly unwarranted invasions of personal privacy. The government normally carries the burden of proof that the release of the information will amount to an unwarranted invasion of privacy. But this burden is not terribly heavy: Example: U.S. District Court accepted government arguments the release of the voice communications tape-recorded aboard the space shuttle Challenger would be an unwarranted IOP. The ruling was made despite the fact a printed transcript of the tape has been previously released. 2020, federal judge ruled Exemption 6 didn't prevent the Federal Communications Commission from having to turn over to the NYT net neutrality comment records the paper requested under FOIA. In 2017, the FCC sought to repeal net neutrality rules enacted in 2015, the public was invited to submit comments to the FCC through commission's electronic filing system. FCC received more than 20 million comments, though many likely submitted by bots and fraudulent email accounts. NYT submitted FOIA request to FCC, seeking Internet protocol addresses, timestamps, and user-agent header data related to the public comments the FCC received (IP unique string of numbers that identifies each device on the internet; user-agent header data contains information about a device, such as the operating system and browser version and platform) FCC refused to disclose the records, citing Exemption 6. But a federal judge ruled against FCC. Judge agreed that IP addresses and user-agent headers are "similar files" for Exemption 6 purposes, but the judge ruled public interest in the data outweighed the privacy interests protected by Exemption 6. "Disclosing the originating IP addresses and User-Agent headers would help clarify whether or to what extent fraudulent activity interfered with the comment process for the FCC's rulemaking and more generally, the extent to which administrative rulemaking may be vulnerable to corruption. This serves as a vital public interest because of importance of public comments in agency rulemaking" (NYT v. FCC). The judge ruled that any invasion of privacy that resulted from releasing the information was justified.

Exemption 7: Law Enforcement Records Records or information compiled for law enforcement purposes, but only to the extent that production of such: Example: Not all records but say a record might expose tactics of investigation (E) or names of undercover sourcing (D) a) Could reasonably be expected to ... with enforcement ... b) Would deprive a person of a ... to a ... ... Example: Active crime someone going to trial for, information that could prejudice/bias the jury! c) Could reasonably constitute an ... ... of ... Not all personal information is subject to FOIA d) Could reasonably disclose the ... of a ... source e) Would disclose ... and ... (and guidelines) of investigation Example: The ways police investigate things - Am I being investigated? If a record is released that states undercover officers use a black chevy impala when doing searches, if a drug dealer access this record and spots this vehicle, they know the cops are looking at them f) Could reasonably endanger the ... or ... of any individual FOIA only applies to ... agencies (not ... or ...) and it is not all law enforcement records (statements of ..., ... r... are ALLOWED for disclosure!) Exemption 8: Financial Institution Materials Matters contained in or related to e..., o... or c... reports prepared by, on behalf of or for the use of any agency responsible for the r... and s... of ... ... Example: Financial crises of 2008 - disclose "stress tests" or all assets to government [checking for risk of imploding] - if revealed to public, could shape market trends, etc. -... used! -Designed to prevent disclosure of information that could undermine p... ... in the ... system Exemption 9: Geological Data Geological and geophysical information and data, including maps concerning ... -Designed to prevent s... and other ... from gaining access to valuable information provided to government by ... and ... industry for purposes of ...! Example: Established maps of oil or gold preserves S... could get access to this information for its competitive benefit (not allowed) State Open Records Laws -... ... states have them, they differ widely Six common exemptions 1. Information ... as ... by state or federal law [Exemption 1] 2. ... ... and in... information [Exemption 7 - not that you cannot get ANY police material] 3. ... ... and ... information [Exemption 4] 4. Pr... dep... me... (... ...) [Decision-making process! - Exemption 5] 5. ... ... information [Exemption 6] 6. Information relating to ... against a ... ... - a reliant privilege Sense a pattern? Usually mirrors FOIA -Some states give agencies ... if an exemption applies, other ... information to be withheld if exemption applies

7) Law enforcement records -Records or information compiled for law enforcement purposes, but only to the extent that production of such: a) Could reasonably be expected to interfere with enforcement proceedings b) Would deprive a person of a right to a fair trial c) Could reasonably constitute an unwarranted invasion of privacy d) Could reasonably disclose the identity of a confidential source e) Would disclose techniques and procedures of investigation f) Could reasonably endanger the life or safety of any individual Federal - state or local Crime, police reports 8) Financial institution materials -Matters contained in or related to examination, operating or condition reports prepared by, on behalf of or for the use of any agency responsible for the regulation and supervision of financial institutions. -Little used -Designed to prevent disclosure of information that could undermine public confidence in the financial system 9) Geological data -Geological and geophysical information and data, including maps concerning wells. -Designed to prevent speculators and other drillers from gaining access to valuable information provided to government by oil and gas industry for purposes of regulation. State Open Records Laws -All 50 states have them, they differ widely uSix common exemptions 1.Information classified as confidential by state or federal law 2.Law enforcement and investigatory information 3.Trade secrets and commercial information 4.Preliminary departmental memorandums (working papers) 5.Personal privacy information 6.Information relating to litigation against a public body -Some states give agencies discretion if an exemption applies, other require information to be withheld if exemption applies

Promissory Estoppel Remedy for a party when harmed by a ... ... of ...! A ... law tort, get compensation through a ...! Journalists now between a rock and a hard place when it comes to disclosing sources In Branzburg, required to disclose sources when called to testify or could risk contempt of court, now have promissory estoppel should you testify but break a ... of ...! Cohen v. Cowles Media Inc. (1991) -Supreme Court decision...? -... ... does not prevent a ... against a journalist who breaches a ... ("I'll NEVER disclose your identity!") of ... to a ...! Legally compelled under Branzburg for threat of ... but can be ... by the ... and lose ...! Therefore, ... ... is a hard practice! When making a ... to a ... BE COGNIZANT (especially if a criminal matter/issue is involved or at risk) To prove promissory estoppal, a plaintiff must show... 1. The defendant made a ... and ... ... to the plaintiff (often documentation - contract or a recording) 2. The defendant intended to ... the ...'s ... on that ... (the ... is often the mechanism you get your information as a journalist - the linchpin in the agreement - "I'll give you this information, but you must ... not to reveal my identity!") 3. The plaintiff did in fact ... ... on that ... to their ... or ... If these first three are true, then the court... 4. ... must be ... by the court in interests of the ... to the plaintiff! Branzburg requires disclosure to a ... ..., also likely if a ... ... Refusal to testify in either could lead to ... (jail time, fines, etc.) BUT could be ... if you reveal the name of a ...! Tips to handle confidentiality... 1. Assume the interview is ... the ... unless the subject seeks ... THE JOURNALIST MAKES THESE ARRANGEMENTS ...! If all of a sudden in the middle of the interview the source states, "Oh, this is all ... the ...!" Can go, no, there is no requirement if someone says it after the fact! 2. There is no ... to grant ... for information that has ... been ...! 3. Before making any promise to a source, try to find something out about the information and ... it came from (ask the source for context/basis of the information) Try not to be ... on the promise of ... Look for conducting more interviews, getting more data - likely the data will piece together without any ... needed! 4. Talk with ... and ... ... before making any promise to a source 5. Keep any promise made ... and ... to ...; be certain you and the source ... ... the conditions to which you agreed "I will not release your information unless compelled to in/by a ... ... or ... ...! I cannot protect you in that scenario." Telling this to your source up front, possibly ... that! 6. ... any promise you make to a source 7. Avoid ... material to a story a source has ... ..., or try to avoid promising a source they have story ... Do not let the source be in ... of the story or dictate how you write it! . . . . . . . . . . . Cohen v. Cowles Media, Inc. (1991) -...-... decision, U.S. Supreme Court -... ... does not prevent a ... against a journalist who breaches a ... of ... to a ... To prove ... ..., plaintiff must show: 1. The defendant made a ... and ... ... to the plaintiff 2. The defendant intended to ... the plaintiff's ... on that ... 3. The plaintiff, in fact, ... ... on that ... to their ... and ... 4. The ... must be enforced by the ... in the interests of .... to the plaintiff Tips for Handling Source Confidentiality 1. Assume the interview is ... the ... unless the subject seeks ... 2. Realize there is no ... to grant ... for information that has ... been ... 3. Before making any promise to a source, try to ... something out about the information and ... it comes from. 4. Talk with an ... or ... ... before making any promises to a source. 5. Keep any promise made to a source ... and ... to ..., and be certain both you and the source ... ... the conditions to which you have agreed. 6. ... any promise you make to a source. 7. Avoid adding material to a story that a source has ... ..., or try to avoid promising the source that he or she has ... ...

Broken promise of confidentiality, common, lawsuit Promise of confidentiality 5-4 1A, lawsuit, promise of confidentiality to a source Imprisonment, sued by the source and lose money, anonymous sourcing Promise to a source 1. Clear and definite promise 2. Induce the plaintiff's reliance on that promise (promise) 3. Reasonably rely, promise, detriment or harm 4. Promise, enforced, justice Grand jury, criminal proceeding Contempt Sued, source 1. On the record, anonymity BEFOREHAND, off the record 2. Obligation, anonymity, already been provided 3. Where Reliant, anonymity, anonymity 4. Editor, news director 5. Simple, easy to fulfill, completely understand -Criminal investigation, grand jury Record 6. Record 7. Adding, already approved, approval Control uCohen v. Cowles Media, Inc. (1991) u5-4 decision, U.S. Supreme Court u1st Amendment does not prevent a lawsuit against a journalist who breaches a promise of confidentiality to a source uTo prove promissory estoppel, plaintiff must show: 1.The defendant made a clear and definite promise to the plaintiff 2.The defendant intended to induce the plaintiff's reliance on that promise 3.The plaintiff, in fact, reasonably relied on that promise to their detriment and harm 4.The promise must be enforced by the court in the interests of justice to the plaintiff uAssume the interview is on the record unless the subject seeks anonymity. uRealize there is no obligation to grant anonymity for information that has already been provided. uBefore making any promise to a source, try to find something out about the information and where it comes from. uTalk with an editor or news director before making any promises to a source. uKeep any promise made to a source simple and easy to fulfill, and be certain both you and the source completely understand the conditions to which you have agreed. uRecord any promise you make to a source. uAvoid adding material to a story that a source has already approved, or try to avoid promising the source that he or she has story approval.

Review: Freedom of Information Act (passed by Congress and signed by president in 1966; reformed many times, last major reforms in 2016) -U.S. ... and ... can file a letter and request documents from federal agencies -... defined - only applicable to pieces of the ...'s office (a... not part of FOIA vs. those in administration who would be), doesn't touch the ... branch (like the ... ...), doesn't touch ... -We're talking about federal agencies in the ... branch and independent regulatory agencies that are building a... l... (USDA, FCC, FTC, Department of Transportation, etc.) Freedom of Information EXEMPTIONS -These are ... categories allowed to avoid disclosure [these are not ... applied; federal agencies are generally going to give out information] 1. ... ... matters -Documents that may include troop movement, spying secrets, weaponry 2. ... materials -Internal personnel rules (hiring/firing, compensation/benefits) 3. Material exempted by ... -Example: In the 1980s, ... passed a ... that exempt the CIA from FOIA (even though CIA is a federal agency under the law of FOIA) 4. ... ... -Giving out ... ... (same) to government as part of investigation or regulatory motions by the government -All government materials are technically owned by the people, but we do not have access to every nook of governmental matters 5. ... papers/...-... ... materials -Attorney for government working on pending litigation matters (...-... ...) 6. ... ... files -Member of military and go to Veteran's Hospital (a public hospital) to get treated - these are still protected medical records 7. ... ... records 8. ... ... materials -... give out records to government agencies as part of a financial stress test 9. ... data Some of these exemptions are ... and not w...-..., but we see there are statutory exemptions that form the basis of the government's (an agency's) response when filing FOIA request responses, two questions it will ask: 1. Do we have it? 2. Do these records meet an exemption? Open Meetings Government in Sunshine Act (1976) [FEDERAL LAW] -Federal boards, commissions, agencies - headed by ... ... of ... or more members who are appointed by the ... with the advice and consent of the ... We see the similar procedure with the ... ..., but it is not a federal board/commission/agency Example: Securities and Exchange Commission -Have commissioners appointed by the ..., ... ... -Requires ... ... to be conducted in public (sunshine) -Notices of ... ... in advance of a public meeting -Courts have applied ... ... (a board/commission/agency must have its members appointed by the ...) -... interpreted but many federal agencies are included -> Looking at the ... branch [see similar boards/agencies/commissions that are applicable to FOIA applicable here] -However, often these public meetings are ...-...: a lot of deliberations and decisions take place before the actual public meeting! -Not perfect law of ... to ...-the-... -> ... can help! Internal memorandum and communications, etc. State Laws -... ... states have some form of "... act" and they ... widely (state agencies to meet in public, give ... ... of ..., etc.) -Most provide for ... .../... ... Example: Meetings dealing with ... or ..., ... (privacy to the members of such state board or agency) How to react when an open meeting is suddenly called to ... .../... ... 1. Ask for the ... ... for ... -Why go into ... ...? 2. Find out ... is asking the meeting to be ... and ...! 3. Never leave a meeting ..., but don't ... being ... out the door 4. Call your ... immediately if something seems fishy [could help you out, give you news resources you may not have had before or knew about] (If it seems shady like an "emergency ... ..." when it wasn't on the agenda) 5. Use ... as well as the law! -If you believe a state agency is violating a spirit of the rules/law, ... on it - hold them ...! Actions taken at a meeting that was not ..., but should have been, might be ... and ...! -Decision not pertaining to personnel matters but in executive session anyways, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . Open Meetings Government in Sunshine Act (1976) -Applies to ... ..., ... and ..., "headed by a ... body composed of ... or more individual members, a majority of whom are appointed to such position by the ... with advice and consent of the ..." -Requires ... ... to be conducted in ... -Notices of meeting required ... ... in advance -Courts have applied ... interpretation State Laws -All 50 states have them, they differ widely -Most provide for closed meeting, or executive sessions -Open meetings tips for reporters: 1. Ask for the ... basis for closure 2. Find out ... is asking the meeting to be closed and ... 3. Never leave a meeting ..., but don't ... being ... out the door 4. Call your ... immediately if something is fishy 5. Use ... as well as the law to gain access 6. Actions taken at meeting that was not ..., but should have been, might be ... and ...

Citizens, journalists Narrowly, president's (advisers), justice/judicial (Supreme Court), Congress Executive, administrative law Narrow, broadly 1. National security matters 2. Housekeeping materials 3. Material exempted by statute Congress, bill 4. Trade secrets 5. Working papers/lawyer-client privileged materials 6. Personal privacy files *** 7. Law enforcement records *** 8. Financial institution materials 9. Geological data Narrow, well-used -Collegial body, two, president, Senate -Supreme Court -President, collegial body -Business meetings -One week -Strict interpretation (president) -Narrowly, executive -Pro-forma -Access to behind-the-scenes, FOIA -All 50, "sunshine act", vary (notice ahead of time) -Closed meetings/executive sessions -Hiring or firing, personnel -Closed session/executive session 1. Legal basis for closure (e.s.) 2. Who, closed, why 3. Voluntarily, resist, escorted 4. Editor, "e.s." Government in Sunshine Act (1976) uApplies to federal boards, commissions and agencies, "headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the president with advice and consent of the Senate." uRequires business meetings to be conducted in public uNotices of meeting required one week in advance uCourts have applied strict interpretation uAll 50 states have them, they differ widely uMost provide for closed meeting, or executive sessions uOpen meetings tips for reporters: uAsk for the legal basis for closure uFind out who is asking the meeting to be closed and why uNever leave a meeting voluntarily, but don't resist being escorted out the door uCall your editor immediately if something is fishy uUse publicity as well as the law to gain access uActions taken at meeting that was not public, but should have been, might be null and void

Anonymous Sources With anonymous sources, we have three situations where a journalist might be compelled to disclose the name of a ... ... or other ... ...! -Journalists always are in the process of collecting information. A lot of this information does not get published/broadcast. This information might be of interest/use to lawyers, grand juries, prosecutors who might want access! a. Civil -Courts are ... likely to ... a journalist's refusal to testify -Likely becuase there is no ... ...! All about lawsuits (defamation, etc.) If, however, information is ... to the ... and there are ... ... ... to get the information, may have to go to trial! BUT THIS IS ...! b. Criminal -Courts are ... likely to ... a journalist's refusal to testify -Not ... but is ... than civil trials! -...'s ... must be balanced against the ... ... right of defendants to ... ... on their ... The defendant is asking you to ... on their ... (... ...); you still have your ... ... right but it is a ... ...! Which will outweigh the other? c. Grand Juries and Special Prosecutors -Reporters have ... ... ... to refuse testimony Think of it like a decision map Is it civil? You're probably .../... Is it criminal? You probably ... ..., but you might not! [Rely on the dissent from Branzburg] Is it a grand jury or special prosecutor? You are ... to either ... it over or can refuse and deal with ... Branzburg v. Hayes (1972) -...-... decision -Majority found ... ... ... ... for journalists who ... to ... the ... of ... ... or other information when called to ... before a ... ... -... applied, only if criminal cases initiated by ... ... or ... ... -Dissent devised a test, used by lower courts when reporters face inquiries related to criminal cases that don't involve a ... ... or ... ... -Dealing with anonymous source reveals and other confidential information involving ... ...! Example: Criminal charges at the state level, usually dealing with a district attorney or state prosecutor (not a ... ...; often not used in states) SO Branzburg ... apply! Some ... of ...! So need to consider... 1. Is it a ... case? Branzburg applies! Branzburg does not apply to ... cases! 2. Are we dealing with a grand jury (you have ... ...) or a district attorney (you ... have ...)? Courts put any case through the three-part test: Requires ... to show the following: 1. There is a ... ... to believe that the reporter has information that is ... ... to a ... ... of the law 2. The information sought cannot be obtained by ... ... less ... of ... ... rights 3. The state has a ... and ... interest in the information Cohen v. Cowles Media (1991) -...-... decision -Majority found ... ... ... protection for journalists who breach ... of ... to a ... Journalists are between a rock (Branzburg: ... to give our information including n... of ... ...) and a hard place (Cohen: source can ... if their n... is ...!) Branzburg: You have to disclose... If you don't: Can face ... (... or ... t...) If you do: Can get ... (P... ...) Damned if you do, damned if you don't! So if you can, avoid ... ...! If not, talk with your ... and your organization's l... ...! Use ... ... s... and when n...! Regardless, this is relatively rare even with anonymous sources!

Confidential source or confidential information uSituations uCivil uCourts are most likely to accept a journalist's refusal to testify Germaine, no other alternatives, RARE uCriminal uCourts are less likely to accept a journalist's refusal to testify uReporter's privilege must be balanced against the 6th Amendment right of defendants to compel testimony on their behalf Testify, behalf (6A), 1A, balancing act uGrand Juries and Special Prosecutors uReporters have no constitutional right to refuse testimony OK/safe Have to Forced, give, contempt uBranzburg v. Hayes (1972) u5-4 decision uMajority found no 1st Amendment privilege for journalists who refused to reveal the names of confidential sources or other information when called to testify before a grand jury uNarrowly applied, only if criminal cases initiated by special prosecutor or grand jury uDissent devised a test, used by lower courts when reporters face inquiries related to criminal cases that don't involve a grand jury or special prosecutor Grand juries GRAND JURY, wouldn't, modicum of rights uCohen v. Cowles Media (1991) u5-4 decision uMajority found no 1st Amendment protection for journalists who breach promise of confidentiality to a source uDamned if you do, damned if you don't. uRequires government to show the following: uThere is a probable cause to believe that the reporter has information that is clearly relevant to a specific violation of the law uThe information sought cannot be obtained by alternative means less destructive of 1st Amendment rights uThe state has a compelling and overriding interest in the information Compelled, names of anonymous sources Sue, name, revealed Contempt (fines or jail time), sued (promissory estoppel) Anonymous sources, editor, legal counsel Anonymous sources sparingly and when necessary

Federal Open-Meetings Law Government in Sunshine Act (the federal open-meetings law) (1976) -Congress passed and president signed into law. Statute affects approximately ... f... b..., c..., and a... "headed by a collegial body composed of ... or more individual members, a majority of whom are appointed to such a position by the ... with the advice and consent of the ..." -These public bodies are required to conduct their ... meetings in ...! -N... of ... meetings must be given ... ... in advance, and the agencies are required to keep ca... r... of what occurs at ... meetings -Law also prohibits in... c... between officials of an agency and representatives of companies and other interested persons with whom the agency does ... unless this c... is r... and made part of the p... ... For our interests, this law does include the ... ... ..., and meetings of ... or more of the ... commissioners must be open to the ...! Ironically, the Government in Sunshine Act has been criticized by some as actually promoting ... at the ... ... ..., with many of the real discussions and debates happening in ...-... meetings between ... commissioners or in meetings between l... a... and l... for the commissioners Courts have ... interpreted the requirement the law applies only to bodies whose members are appointed by the ...! Example: U.S. Court of Appeals for D.C. ruled the Government in Sunshine Act didn't govern meetings of the Chrysler Loan Guarantee Board, body created by Congress to oversee federal loan guarantees for the automaker People who served on the board were not actually named by the ..., but served because they held other ... o... (e.g., secretary of treasury, comptroller general, chair of Federal Reserve) A board or agency must also have some ... a... to a... or take a... before the ... applies! Example: U.S. Court of Appeals ruled law doesn't apply to president's Council of Economic Advisors - sole function of CEA is to ... and ... the president, meaning it has no r... power! (Cannot fund projects, though it may appraise them - has no function outside of ... and ... the president) Meaning, it is not subject to FOIA or Government in Sunshine Act Even agencies that fall under purview of the law may meet behind ... ...; the law lists ... conditions/exemptions under which ... meetings might be held The first ... mirror the exemptions in ...; the ... focuses on situations in which the agency is participating in ar... or the process of ad... or otherwise d... a case Remember with FOIA: Agencies must publish ... of the records they hold and permit c... of these materials!

Federal Open-Meetings Law In 1976, Congress passed and president signed into law the Government in Sunshine Act, the federal open-meetings law. Statute affects approximately 50 federal boards, commissions and agencies "headed by a collegial (shared responsibility) body composed of two or more individual members, a majority of whom are appointed to such position by the president with the advice and consent of the Senate" Importantly for us, this includes the Federal Communications Commission, and meetings of three or more of the five FCC commissioners must be open to the public. Ironically, the Government in Sunshine Act has been criticized by some as actually promoting secrecy at the FCC, with many of the real discussions and debates happening in closed-door meetings between two commissioners or in meetings between legal assistants and liaisons for the commissioners. These public bodies are required to conduct their business meetings in public. Notice of public meetings must be given one week in advance, and the agencies are required to keep careful records of what occurs at closed meetings. The law also prohibits informal communication between officials of an agency and representatives of companies and other interested persons with whom the agency does business unless this communication is recorded and made part of the public record. Courts have strictly interpreted the requirement the law applies only to bodies whose members are appointed by the president. 1981, U.S. Court of Appeals for D.C. ruled the Government in Sunshine Act did not govern meetings of the Chrysler Loan Guarantee Board, a body created by Congress to oversee federal loan guarantees for the financially troubled automaker. People who served on the board were not actually named by the president, but served because they held other federal offices (secretary of the treasury, comptroller general, chair of the Federal Reserve). A board or agency must also have some independent authority to act or take action before the law applies. A U.S. Court of Appeals ruled the law doesn't apply to the president's Council of Economic Advisors. The sole function of the CEA is to advise and assist the president, the court said. It has no regulatory power! It cannot fund projects, though it may appraise them. It has no function, save advising and assisting the president. So it is not subject to either FOIA or the Government in Sunshine Act. Even agencies that fall under the aegis of the law may meet behind closed doors. 1976 law lists 10 conditions or exemptions under which closed meetings might be held. The first nine mirror the exemptions in FOIA. The 10th exemption focuses on situations in which the agency is participating in arbitration or in the process of adjudicating or otherwise disposing a case. Summary Statutes provide public access to both federal records and meetings held by federal agencies. The federal records law, FOIA, makes public all records including electronic records and email held by agencies within the executive branch of government and the independent regulatory commissions. Courts have given a broad meaning to the term "record" but have ruled an agency must normally create and possess such a record before it becomes subject to FOIA. Nine categories of information are excluded from the provisions of the law: exemptions for national security, agency working papers, highly person information and law enforcement files. Agencies must publish indexes of the records they hold and must permit copying of these materials. It is important to follow specific procedures when making a FOIA request to see certain records or documents. The Government in Sunshine Act is the federal open-meetings law. This law reaches about 50 agencies in the executive branch and the regulatory commissions. Members of these organizations are not permitted to hold secret meetings unless they will discuss material that falls in one of 10 categories. These categories mirror FOIA exemptions but also include a provision that permits closed-door meetings to discuss attempts to arbitrate or adjudicate certain cases or problems.

Intrusion It is illegal to ..., physically or otherwise, upon the ..., ... or ... ... of an individual if a reasonable person would find the manner of the ... to be ... .... -Example: Privacy you have in your own home, office, or place where you have a ... ... of ...! Intrusion vs. trespass Google Trucks taking pictures for Google Maps - pulled into driveway of a home, kept taking pictures and then drive away -Was not intrusion - the car could not get any photos that wasn't already visible from a public street (so not private) -Was trespass - literally stepped onto the property - trespass is about ... ... ... regardless of if you ... ... or not! Intrusion focuses exclusively on how information is ... and ..., not how it is ... or ... What is the most important legal element? -Examples: -Eavesdropping - overhearing something that was not meant to be heard, could be intrusion. Violating someone's ... ... of ...! -Accessing private emails or computer data -Using a camera with a telephoto lens There is no ... ... in ...! Example: Talking in backyard and talking quietly, if someone uses sound amplification technology - this may go against my ... ... of ... Sunbathing naked in backyard -Someone takes a photo - if the backyard is normally situated and therefore hidden from the naked eye, this would be intrusion -But - if the backyard is underneath a hill or mountain where people can see from a public street or from the hill/mountain which is public property, then this would not be intrusion -But - if we used telescopic lens to zoom than what we would naturally see with the naked eye then could be intrusion Therefore, there is not complete ... on ... ... (if a reporter is on public property when the reporting occurs) Crime Scenes -Press has no right to crime scene if ... is excluded! The freedom of expression for journalists does not offer them more rights than the ... (first blank) -Example: A crime occurs on a public park - can show up as reporters and have access, but if the police set up a perimeter (cannot just cross the line and enter, even if on public property) -BUT if crime scene is visible to the ..., press coverage is not intrusive -Example: Car accident on side of highway, this is still public and reporters are allowed to take photos of it (despite an embarrassing, personal moment) Example: On a public space or visible to public eye, then no ... ... of ...! Paparazzi -... ... to extend to privacy rights in public spaces in certain circumstances -When the line is crossed between photographing someone in public and ... -... has ...-... ...! All about balance - right for photographer to take photo in public place BUT in some cases the photographer can overstep and harm the celebrity or harass them

It is illegal to intrude, physically or otherwise, upon the solitude, seclusion or private affairs of an individual if a reasonable person would find the manner of the intrusion to be highly offensive. -Reasonable expectation of privacy -Physically set foot, gathered information Focused exclusively on how information is gathered and collected, not on how it is reported or published THE MOST IMPORTANT LEGAL ELEMENT: "A reasonable expectation of privacy" Reasonable expectation of privacy (any time four blanks) No privacy expectation in public -Not complete immunity on private property Crime scenes -Public, public -Press has no right to crime scene if public is excluded -If crime scene is visible to the public, press coverage is not intrusive Paparazzi Statutory law -When the line is crossed between photographing someone in public and harassment -California has anti-paparazzi statues

Appropriation It is illegal to use an individual's ... or ... for ... or ... purposes without consent. -This applies to advertising, public relations, journalism, etc. "Right to privacy" vs. "right to publicity" "Right to privacy" -Protects an individual from ... ... -All ... (not ... or ...) -Only the ...! - Cannot sue for invasion of privacy when you're ... "Right to publicity" -Protects an individual from ... ... -... (NOT ALL ... - non-public people for instance) (no ... or ...) -Includes heirs of the ... - cannot sue for invasion of privacy but can for an encroachment on right of publicity -These are people whose name or likeness is of commercial value (not most ... ...!) "Right of Publicity" -An individual's name or likeness has ... ... and using it without permission is akin to ... -Can include... a. Name (... names too!) "___ endorses this product" (is a claim of likeness) b. Likeness - must be "cl... r..." of "... ..." c. ... - there are ... soundalikes - if a ... sounds enough like a person to suggest that person is invested in that product (radio ads) -Of course with Saturday Night Live ... impersonations it is different - not selling a product (... is an exception!) Even ... ... to sell something could get a company into trouble Example: Old Navy, commercial using a Kim Kardashian ... ... - yielded a lawsuit, claim by Kardashian is it was an invasion of her right to publicity - due to her likeness -Is she justified? It appears more like a generic celebrity character (are visual similarities but is it similar enough?) - Do not know if the courts would have agreed because Old Navy settled with Kardashian out of court (due to lengthy court time, cost of lawyers) -This is not an actual person's image, but if people mistook them based on their looks, could be a claim of likeness!

It is illegal to use an individual's name or likeness for commercial or trade purposes without consent. "Right to privacy" vs. "Right of publicity" Right to privacy -Protects an individual from emotional damage -All individuals (not businesses or organizations) -Only the living (dead) Right of publicity -Protects an individual from economic harm -Individuals (not businesses or organizations) (not all individuals) -Includes heirs of the dead (not most regular people) -An individual's name or likeness has economic value and using it without permission is akin to theft. Name -Includes stage names Likeness -Must be "clear recognition" of "identifying features" Voice -Parody is an exception Look alikes, look alike

Covering Protests Protest are becoming more and more common, likely as a journalist you will come across reporting on one. A lot of policing and chaos (altercations or clashes with police) can spark legal issues! Difficult for police to oftentimes determine who is and is not a journalist (constant coverage of protests using smartphones for instance) Journalists have ... ... rights than the ... ...! -BRING ... (work or photo ID, press pass, etc.) -Can be ... like any ... ..., but for public relations reasons on the police they often try and avoid arresting journalists if a journalist is not violating a generally applicable law! Common Charges 1. ...-based charges ...: Just because you are a reporter does not make you ... to ... law! Example: You follow protestors onto ... ... for reasons of coverage (YOU ARE NOT ... from ... law!) -Feed police commands, get off ... and follow suit! Example: BLM protest in St. Louis, protest about policing ends up on ... ... in a gated community - white couple with guns defending their ... - all of these people (including journalists covering the protest) were ... on ... ... - BE CAREFUL OF WHAT SPACES YOU END UP IN 2. ...-based charges ... ...: Let's say you're a reporter covering protests but in a group of protestors (who are knocking over trash cans, in altercations, etc.) - police might not be able to ... you from these protestors, you might possibly be seen as a suspect because you are in this large group! ...: Aiding and abetting illicit/illegal activity of protestors Example: Brooklyn protestors taking over/blocking street - as a journalist you might try helping protestors get off the street or getting in the way of police to make an arrest as a result or in the way for coverage ... to ... or to obey ... ...: Unpermitted protest - blocking the street or traffic - given an order or notice by the police - Journalists ALSO have to ... (you may slow walk it, but cannot ... when ...!) If in a small community, try to get to know law enforcement management, help pick you out of a lineup (avoid being mistaken as a protestor) 3. ... Violations -It is illegal to ... ... ... conversations! One-Party States -Includes ... -If a journalist is a ... in a ..., can ... without others' consent (just need the consent of one party) All-Party States -11 states -All parties must consent This applies to protests... Example: Have a ... device overhear conversations beyond the interview with a protestor - this may help police (motive to action, etc.) This is technically ... - other conversations are illicitly being ... Example: Chants are public, no presumption of privacy, but if you can pick other small conversations (could be ...) Tip: Don't leave ... devices running open! Protections while covering protests 1. ... ... - right to (a) freedom of ..., (b) ..., (c) petition for ... of ..., (d) AND TO ... ... c. I'm mad at the government! There may be time, place, and manner restrictions requiring a ... before a protest - if you do not file a ... could be considered engaging in illegal activity if you do not get out! d. If ... occurs at a protest, even if you aren't directly involved, police will crack down and it could be you too! Remember, journalists have no ... ... as a journalist! 2. ... ... - protects against unlawful ... and ... -Law enforcement cannot just take equipment away without ...! But if you get ..., can confiscate what's on you but need a ... for ... and the .../... 3. Civil Rights Lawsuits -... U.S.C. (U.S. Code) ... -Congress passed; president signed -If officer's conduct "violates ... ... ... or ... rights of which a ... ... would have known" Example: Peaceably assemble at public place, but get arrested. You see no ... for your arrest, file a civil rights lawsuit against the police for unlawful arrest! If recording/photographing police in public place but police takes your phone - file a civil rights lawsuit (4th Amendment) 4. ... ... ... of 1980 -Restricts government from .../... ... materials from someone "... believed to have a purpose to ... to the ...!" IF A REPORTER, wear your ... ... - identifies you as a working member of the press, I am creating ... ... to .../... to the ...! ... put police on notice - "If you take my stuff [... ...], you are violating the ... ... ... of 1980!" By identifying yourself, placing a trump card to prevent stuff (... ...) from illegal ...! -Important to note this act will defend you but it is ..., often you may have to file a ... for this Act to serve as defense -Use the ... to get your stuff (... ...) back that was taken!

No more rights than the ordinary citizen -Documentation -Arrested, ordinary citizen Location-based -Trespass, immune, trespassing -Private property, immune, trespassing -Property -Private property, property -Trespassing, private property Conduct-based Disorderly conduct Obstruction Failure to disperse or to obey lawful orders, disperse (resist when escorted) Wiretapping violations -Surreptitiously record private conversations -Party, conversation -Recording -Wiretapping, recorded -Wiretapping -Recording 1A: Press, speech, redress of grievances, peaceably assemble c. permit, permit d. violence Special rights 4A: searches and seizures -CAUSE, arrested, cause, arrest, search/seizure 42 U.S.C. 1983 If officer's conduct "violates clearly established statutory or constitutional rights of which a reasonable person would have known" Cause Privacy Protection Act of 1980 Searching/seizing documentary materials from someone reasonably believed to have a purpose to disseminate to the public Press pass/credentials - documentary materials, disseminate/broadcast to the public Credentials, (documentary materials), Privacy Protection Act of 198-0 (Documentary materials), seizure Reactive, lawsuit Statute Common Charges uLocation-based offenses uTrespassing uConduct-based offenses uDisorderly conduct uObstruction uFailure to disperse or to obey lawful orders uWiretapping violations uIllegal to surreptitiously record private conversations uOne-party consent uAll-party consent Protections uFirst Amendment uFourth Amendment uSearch and seizure uCivil Rights lawsuits u42 U.S.C. 1983 uIf officer's conduct "violates clearly established statutory or constitutional rights of which a reasonable person would have known" uPrivacy Protection Act of 1980 uRestricts government from searching or seizing documentary materials from someone "reasonably believed to have a purpose to disseminate to the public" uCredentials, and put police "on notice of an intent to disseminate"

Publication of Private Information One who gives ... to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that a) would be ... ... to a ... ... and b) is not of ... ... to the ... A and B are very ... (can be complicated) Where do you draw the line? Example: U.S. Weekly on the sex lives of celebrities Basic Elements 1. There must be ... given to private facts about an individual (NOT ... ... information or part of ... documents, Example: Address - this is part of public information) 2. The revelation of these facts must be ... ... to a ... ... (NOT a light transgression; lots of individuals would claim this is ... ..., what is the ... standard to that?) 3. The published material must not be of ... ... ... (For the sake of embarrassing the person) Publicity Publicity is different from ... in libel law! Libel law: ... means communicating the material to a ... ... ... Privacy law: Publicity means communicating the material to the ... at ..., or a ... number of people [Privacy law, a ... dissemination, more people need to consume it] Private Facts Plaintiff must demonstrate the material published was indeed ... -The fact doesn't have to be totally ... (someone else can know) -But cannot be ... knowledge within your ... Usually intimate matters: Think health care rights, grades and education rights, etc. Example: Publication alludes to a man being gay, the man sues for IOP He was not completely out to all of his family, but he was a leader in the community. The publication may have reached those who didn't know he was gay before the publication, BUT he was out and this information was circulating in the public enough to not be a revelation of private facts Victims of ... and other ... ... ... -Can their names be legally published? ..., names ... be legally published (... allowed to publish what is in the ... ...) if part of a ... ... [e.g., a police report] or ... [e.g., a court filing] But should they? Most journalists ... publish names of ... ... victims without their ..., though they ... legally (and have in the past) Proponents for the publication of their names states it might end ... (something that should not be ...), but naming victims can be ... them and if without consent could almost be like committing the ... again Highly Offensive Would a ... ... find the publicity given to the fact highly offensive? The concern from the courts is to protect against "... plaintiffs" or people who are ... ...! (Anyone just mildly offended about something) Tort meant to be for the disclosure of facts that is highly impactful to lives Since it's about ... harm, only the ... can file! Exceptions: Families of ... individuals have used this tort to sue when ... of their ... are released to the public Example: Kobe Bryant ... in crash, EMTs took photos of his ... and shared them Example: Mother Judd ..., committed ..., daughter wrote piece in the NYT - information part of the public record so not triable, but making the appeal to not publish this information Example: Daughter drove car off cliff, caused her to be decapitated. Images by EMTs taken and posted online. Some courts have allowed families to receive som damages if they can find who spread the images (public doesn't need to know this) If material is of ... ... ..., it does not matter how ... or ... the revelation of the facts are! Newsworthiness Factors for ... ... ... 1. The ... ... of the private facts that were published -Or just a prurient value? 2. How deeply the disclosed private facts cut into ... ... ... Example: Politician running for office, but discovered he is cruising for sex (LGBT) despite being outspoken against the LGBT community. This could override privacy of information 3. The extent to which the ... (the individual whom the private facts pertain) ... rose to a position of ... ... Example: You have a famous relative. You go with this relative to a bar and get drunk, do things you shouldn't and someone records your actions. By being with this famous relative, you voluntarily entered into a situation where privacy rights can be lost. Most judges set a ... ...! This is why so much salacious stuff circulates in the public eye Newsworthiness It's all a ... ... between the right to ... and the ...'s right to ... 1. Does the ... in which the story is presented have an impact? Example: Does the story only focus on this private information or is it part of a larger story? -... even ... tone is acceptable if newsworthy! 2. What about ... ... ...? -This libel law protection ... usually apply to privacy actions! 3. What if I'm not in the ... ..., but my friend or family is? -People whose lives ... with famous, infamous or newsworthy individuals ... some of their privacy! Examples: Sons of presidents like Hunter Biden, Billy Carter 4. How far into a ... life can the press go when discussing ... persons? -The line between ... information in the ... ... [where jury would side with defendant] and "... and ... ... into the ... ... for its ... ... [where jury would side with plaintiff] Remember: Publication of private facts is not about ... (it's about how it makes someone ...) And it's not about a ... ... ... but must be ...! ... at ... or a ... group in public Review Public disclosure of private facts (publication of private information) One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that a) would be highly offensive to a reasonable person and b) is not of legitimate concern to the public 1. There must be ... given! Requires slightly ... audience (disseminate ... to some extent) 2. ... ... to a ... ... ...! Differs from person to person -Example: A drag show in Brooklyn may have children participating in the show. This performance might not pass in Tuscaloosa (could be found offensive) -Offense can be ... depending on geographic location! Up to the judge, jury (part of trial) Would information be offensive to a ... ... depends on the ...! And ... change by location (a Brooklyn ... vs. a Tuscaloosa ...) Courts are careful not to facilitate ... plaintiffs (those who are ... ...) - may not force damages to something "mildly offensive" 3. Not of ... ... ... Bears upon public issue (matters of ... ...) Remember the Ted Cruz and family going to Cancun during ice storm in TX -This is private information, BUT it is information about a public official shirking his duties. While this is private information, it is information that does bear upon ... ...! Example: Say a politician like Ted Cruz gets cancer Private information but it affects his duties as a public official, could be newsworthy (if he died, would need a re-election) Say a child of a politician has cancer, may not be pertinent for the public to know, could be private Elements 2 and 3 are ... - determined at ... by ...! -What is private information that is not of legitimate public concern and is highly offensive to a reasonable person can change by the ... - ... change or vary by location! All three elements are decided by the ... Newsworthiness (LPC) Factor at play in the disclosure of private information Does the public have a right to know? Is there a reason? Example: Gawker Media's defense in Bollea v. Gawker Media, LLC: Hulk Hogan is a public figure of the American ideal. A sex tape would be ... ... because the public knows who this is Facts: 1. The ... ... of private facts that are published -The reason the public is seeing it. How it might impact them Example: Celebrity and entertainment news. Might not match our definition of "newsworthy" but it protected as such 2. How deeply the disclosed private facts cut into ... ... ... Example: A politician gets cancer - could be public information (this directly affects how he handles his duties/his duties) A politician's wife or kids get cancer - this could still be public information because it affects how he performs his duties A politician's mother-in-law gets cancer - cutting close to ostensibly private affairs (how much does that really affect how he performs his duties?) 3. Extent to which the plaintiff voluntarily rose to position of public notoriety Example: Publicized by proxy (cousin or relative is famous - you and this cousin go the bar, get drunk - someone records you - you lose that privacy right by voluntarily participating) Most judges set a ... ...!

Publicity, highly offensive, reasonable person Legitimate, concern, public Subjective Publicity (NOT readily available, government) Highly offensive to a reasonable person (highly offensive, community) Legitimate public concern Publication Publication, single third party Public at large, great, broader Private Secret Common, community Rape, violent sexual crimes YES, can (are, public record), public document or proceeding Do not, sexual assault, consent, can Stigma (stigmatized), re-traumatizing, assault Reasonable person Eggshell, overly sensitive Emotional, living Deceased, images, bodies Died Died, suicide Legitimate public concern, offensive, embarrassing Legitimate public concern 1. Social value 2. Ostensibly private affairs 3. Plaintiff, voluntarily, public notoriety Low bar Balancing act, privacy, public's, know 1. Manner No, sensational 2. Involuntary public figures Doesn't 3. Public eye Intersect, lose Private, newsworthy Private, public interest, morbid, sensational prying, private life, own sake Reputation (feel) Single third party, publicized! Public at large, large Publicity Larger, publicly Highly offensive, reasonable person SUBJECTIVE Variable Reasonable person, jury, juries, jury, jury Eggshell, easily offended Legitimate public concern Public concern Public issues Public information Legitimate public concern 1. Social value 2. Ostensibly private affairs 3. Plaintiff, voluntarily, public notoriety Low bar

Shield Laws Designed to shield reporters from problems of promissory estoppel (that rock and a hard place scenario) -... states (including ...) -... has a strong shield law -Other states like Virginia and Utah have no shield law (... states) but do have some ... of ... in ... law [... c... but not a statutory law] -... has no shield law OR protection of journalists within ... law -No ... shield law It is at the ... level and ... widely! No 100% ..., each of the ... state's shield laws is written differently: Example - ... are defined differently or the privileges a ... (same blank) might have -Basic features of state shield laws: 1. ... can use the privilege (... is a ...?) 2. ... of ... protected -What is a ... allowed to ... and not ...? 3. Q... -Circumstances where a ... might be required to ... While the shield laws can ... widely, do see three elements present in each -... ... can weigh in on disputes between ..., but has declined to on the matter of ...'s ... Example: [Dilemmas of multi-state issues] Jana Winter is subpoenaed to reveal a source. She is a reporter from NY but was reporting on a story based in CO. Subpoenaed for her notes or she faced contempt (possible jail time). Complexity: Winter lived in NY, she wrote the story in NY. She did write about a CO event, visited 2x - the judge would argue CO law would apply! - CO judge compelled her to reveal her source because of this She would argue because she is a NY reporter, she would be protected by NY's shield laws. The NY State Court of Appeals (their Supreme Court) ... the subpoena from the judge in the other state (idea of her home state ... her) The idea she worked in NY, was based and resided in NY - subject therefore to ... shield law! NY Court of Appeals would set a ... in the state of NY for reporters in NY Not a matter of ... ..., so ... wouldn't apply! This example proves how complicated shield laws can be when it involves stories and reporters from different states! Alabama's Shield Law No person ... in, ... with or ... on any ..., ... ... station or ... station, while engaged in a ...-... c..., shall be c... to d... in any l... p... or t..., before any court or before a ... ... of any court, before the presiding officer of any tribunal or his agent or agents or before any c... of the l... or elsewhere the ... of any information procured or obtained by him and published in the ..., b... by any ... station, or t... by any ... station on which he is engaged, connected with or employed -What do we see? (3 elements of all shield laws) 1. WHO is a journalist ["No person engaged in, connected with or employed on any ..., ... ... station or ... station, while engaged in a ...-... capacity, shall..."] 2. WHAT is protected (kinds of information) [The ... of any information procured or obtained by him and published in the ..., b... by any ... station, or ... by any ... ...] -Alabama's shield law is considered ... "No person engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gathering capacity, shall..." Some plusses with Alabama's shield law: -It includes ... ...! (But you were involved in a ... trial, Branzburg would apply!) [These are ... level requests, doesn't protect from ... requests!] -It's ... [seems good; any information gathered, extensive to investigatory situations and diverse to the type of journalist - includes broadcast and print!] -Don't have to be ...! Can include v... [CW - contributor, unpaid] BUT the 11th Circuit has applied a s... s... ...! Price v. Time, Inc. (2005) Sports Illustrated was ... ... because it's a...? S... s... ...: If it were an online-only newspaper - OK (the p... ... of the shield law includes newspapers) Blog? AL.com (newspaper) videojournalist but operating off of YouTube/social media - Who knows. There is no precedent for ...-only publications! No precedent by the 11th Circuit - but read very ... We can see shield laws we do apply relatively broadly, but there are limitations (notably definitional limitations) All on a ...-by-... and if you're a freelancer it is even more dangerous (if it turns out the shield law has been narrowly interpreted) - need to hire an attorney [refusing a subpoena, court order] This is not all that common - why precedence is hard to come by! Built by ...-made law and ... - have to literally wait for that kind of case to arrive (even with ... law deal with ... c...!)

uNo federal shield law uBasic features of state shield laws uWho can use the privilege (Who is a journalist?) uKinds of information protected uQualifications uSupreme Court can weigh in on disputes between states, but has declined to on the matter of reporter's privilege 41 (AL) AL 9, modicum of protection in judicial law [appellate courts] WY, judicial State, vary Consistency, 41 Journalists WHO, WHO, journalist Kinds of information, journalist possess and not disclose Qualifications Journalist, disclose Vary Supreme Court, states, reporter's privilege Disregarded, protecting No person engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gathering capacity, shall be compelled to disclose in any legal proceeding or trial, before any court or before a grand jury of any court, before the presiding officer of any tribunal or his agent or agents or before any committee of the legislature or elsewhere the sources of any information procured or obtained by him and published in the newspaper, broadcast by any broadcasting station, or televised by any television station on which he is engaged, connected with or employed. uAbsolute u"No person engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gathering capacity, shall..." uBut 11th Circuit has applied a strict statutory construction uPrice v. Time, Inc. (2005) uSports Illustrated not protected because it's a magazine ABSOLUTE Grand juries; federal; state; federal Absolute Employed - volunteers Strict statutory construction Plain language Online Narrowly Case-by-case Court, interpretations, statutory, statutory construction

Free Press-Fair Trial Controversy Prejudicial Publicity -Publicizing things about criminal trials that might impact the trial! -Tension between ... and ... Amendments a. ... ... (...) b. ... ... (...) [by jury, a speedy ..., etc.] Prejudicial publicity -News reporting about ... and ... that might influence members of the community who ultimately sit on the ... that decides a ...'s ... or ... Journalists will always report on ... and ... (same blanks) - serious incidents and reporters have the right to report! But if prejudices are spread, defendant has their right to ... ... (same blanks) Common stories that risk prejudicial publicity -These are stories often covered by journalists but take caution when reporting! Or don't report if you don't have to. No means to prevent from reporting on these stories/topics but to do so ethically a. ... -Not always ...! -... Amendment: right against ...-... - if forced to testify often say "I plead the ...!" - you say this if what you might say could be used against you or make you appear c.../... - you do not have to be ... of anything but the information could make you appear so or not - information may be considered by the court to consider charges (similar idea of Glomar responses - you neither confirm nor deny this information) -People who are m... ..., ... ..., or ... are the most likely to ...! Susceptible to c...! Could lead to false ...! Example: Central Park Five - a lot of teens running around the park where a woman was brutally raped and almost killed. The police brought the boys to the station and held them their for hours -> all c... for the crimes. It was eventually found someone else committed the crimes, all innocent but still ...! -This idea of m... unwellness or susceptibility to police c...! So, it might be best not to include information on a c... - hard for a ... not to consider, often ... to court - so ... is not technically allowed to consider it but it would be hard not to if it is out there (prejudicial publicity) b. ... -Also known as ... ... t... -Also think about bite mark testimony, handwriting testimony, body language analysis - this is all pseudoscience used and administered often (s... to d...!) -Commonly talked about and reported on "The defendant failed a ... ... t..." This could prejudice a ...! A defendant might fail one but then pass another (s... to d...!) c. P... ... -A defendant having a ... r... - p... ... (same blanks) should not bear weight on the trial at ...! Example: Defendant has made a lifetime out of robbing convenience stores (p... ...) but is in trial for committing a murder. Defense: The robberies have nothing to do with this ... murder trial! (The past plays no weight on the ... trial) -Do not speak to the propensity of crime they committed -Presumed innocent until proven guilty! d. ... c... -Do not know if ... are ... for this (same blanks) e. ...'s c... -Say you interview the friends of the defendant and discover from them things like "they loved to party" "they love getting into fights" "they hung out with gang members" "they had an erratic personality" -May seem compelling but can ... the ...! f. I... the ... m... -Editorials calling for certain ... or ... outcomes! Example: Central Park Five: while the boys were incarcerated/on trial (the false confessions were unknown) - Donald Trump paid the NYT for a full page ad "BRING BACK THE DEATH PENALTY" - execute these boys (rile up p... m.../sentiment against the defendants) -Also includes letters to the editor g. Implying a ... is ... before ... -Innocent until proven guilty! The ARBITER is the ... and the ... ... - not you as a crime reporter - your responsibility is to play the role that "Yes, a lot of this evidence might look bad for our defendant, but still presumed innocent!" Example: Nancy Grace (TV talk host) on the Casey Anthony case (2008) - Daughter died under suspicious circumstances - "She's really guilty even though evidence makes it questionable" Acquitted, but prejudicial publicity nonetheless! FOR ETHICAL REASONS, hold out on these common stories if possible . . . . . Prejudicial Publicity Journalists report on ... and ... - this coverage could possibly taint p... ... ...! Journalists cover arrests, interview family of the defendant and victim - all of which could impact a defendant's ability to receive a ... ...! Prejudicial publicity really common in police press conferences, public press releases - items popularly reported Example: A defendant failed a lie detector test or there was a confession of a crime. May be true but be cautious when reporting! Forensic evidence or confessions often involve pseudoscience or coercion -Confessions - coercion - suspect may not be allowed to eat or sleep for many hours - asked the same questions over and over - could lead to a false confession (coercion - confession of a crime they did not commit - Central Park 5 example) -Confessions and forensic evidence may be determined ... at trial (jury not allowed to hear/should not know when making their verdict but is already out (may be in the back of their heads as they deliberate) - risk jury might be skewed!) The seven possible stories that could lead to prejudicial publicity journalists aren't not allowed to report on (not illegal to report on such topics) but is an ... issue that needs consideration!: - ... - ... - ... ... - ... credibility - ...'s ... - Inflame the ... ... - Implying a defendant is ... before ... Tension between ... and ... Amendments! ... Amendment - right to a ... ... by your peers (...), ... ... ... Amendment - free press and speech We all as citizens have both constitutional rights - how to draw the line and balance them! Prejudicial publicity definition: News reporting about ... and ... that might influence members of the ... who ultimately sit on the ... that decides a ...'s ... or ... -Can still apply to civil cases too, just no ... Amendment imperative!

uTension between 1st and 6th Amendments uFree press (1st) uFair trial (6th) uPrejudicial publicity uNews reporting about crimes and courts that might influence members of the community who ultimately sit on the jury that decides a defendant's guilt or innocence uConfessions -Accurate, 5th - self-incrimination, 5th, complicit/guilty, guilty -Mentally impaired, mentally ill, young, confess -Coercion, false confessions Confessed, confessed Mental, coercion Jury, inadmissible, jury uPolygraphs -Lie detector tests -Subject to dispute! Lie detector test, jury uPast crimes Criminal record Current uWitness credibility uDefendant's character Prejudice, jury uInflame the public mood Criminal or prison outcomes Public mood uImplying a defendant is guilty before trial Jury, trial judge Crimes and courts, potential jury pool, fair trial Inadmissible, ethical u Confessions u Polygraphs u Past crimes u Witness credibility u Defendant's character u Inflame the public mood u Implying a defendant is guilty before trial u Tension between 1st and 6th Amendments u Free press (1st) u Fair trial (6th) u Prejudicial publicity u News reporting about crimes and courts that might influence members of the community who ultimately sit on the jury that decides a defendant's guilt or innocence 6th