Communication Law Final

How does the FCC review complaints about indecency?

1. It reviews the material to determine whether there is a depiction or description of sexual excretory organs or activity 2. If there is such a depiction/description, the FCC evaluates whether the material is "patently offensive"

What is the Miller Test?

A 3 part test for determining if something is obscenity 1. Whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest 2. Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions 3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value You must get all three, if one fails, it is not obscene

What is a SLAPP? What are anti-SLAPP statutes?

A SLAPP is a non-substantive legal claim thats intent and effect is to discourage someone from speaking out or to punish someone from speaking out An anti-SLAPP statute allows the court to evaluate whether a claim is a SLAPP and toss it out if it is. It can also require the person who filed the SLAPP to pay the other person's legal fees

What is the 1983 Action?

A civil lawsuit for money damages against a government official for depriving you of your constitutional rights

Q2Q For a libel claim to be successful, the defamatory statement at issue must be one that a reasonable person would believe is expressing

A fact

What was New York Times v Sullivan?

A landmark libel case that established a new standard of fault, actual malice It arose out of the civil rights movement when MLK and his supports took out an ad in the NYT that listed police abuses but got some minor details wrong. They were sued by the Montgomery city commissioner and the NYT says they have a right to criticize the government and the Supreme Court agrees

What are retraction statutes?

A retraction statute limits the amount of damages you can be sued for if you retract a statement If a news organization gets a story very wrong, the person it is a about will usually ask you to clarify, correct, or retract it. Retracting is saying you do not stand by what you reported. People are most likely to sue if they feel the news organization has not listened to them.

What is a prefatory remark?

A statement that dresses a fact up as an opinion

What is the difference between an all purpose figure and a limited purpose figure? What standard of fault is used for a limited purpose figure?

An all purpose figure is someone who is very well known and famous for many reasons, they must prove actual malice A limited purpose figure is someone who is famous for a specific reason or in a specific area To apply actual malice to a limited purpose figure you must prove that the libelous statement involves the subject for which the person has sought attention otherwise the plaintiff must only prove negligence

Q2Q Michelle Obama recently vacationed in FLorida. She rented a private home set back 300 yards from the nearest public road. The home is surrounded by palm trees and other vegetation. It is nearly impossible to see the home from the road.On night she sat topless on a balcony and a tabloid photographer, on the road using a powerful telephoto lens, was able to make a picture of Obama. He sold the photo to the National enquirer, which published it. Obama is suing the photographer for intrusion. In their defense, they are arguing the photo was taken from a public road and Obama was visible via the photographer's camera. This is likely:

An intrusion

What is a Gag order? Who can it constitutionally be placed on?

An order on someone telling them not to talk about the trial Putting a gag order on trial participants (witnesses, attorneys, etc.) is generally constitutional if there is good reason, it is generally unconstitutional to put one on non-trial participants (members of the media, ordinary citizens)

What is a sealing order?

An order that is requested by one party or another by filing a motion with the judge and arguing that you have good cause for records to be sealed. They usually contain embarrassing information and judges are generally generous with these.

Q2Q Jimmy Betts is a member of a labor union in Georgia that has 100 members. Recently, a businessman, Bob Sponge, wrote in a newspaper op-ed that the union members were corrupt, Betts is suing Sponge for libel, claiming that the statement about the group as a whole has libeled him personally. Which is generally true about the element of identification?

Betts could not satisfy the element under the prevailing group-libel laws

Q2Q Fionna Bipples is a music major at UGA. One afternoon she's walking by Grady College and sees a professor on the green in front of the building. He is dancing rhythmically to Whitney Houston's "I WIll ALways Love You." As he is dancing, a police officer approaches and orders him to stop dancing. Bipples stops and watches from across the street on a public sidewalk. She pulls out her smartphone to record the interaction, but when the officer sees her he orders her to stop - and when she refuses he arrests her on a charge of failure to follow an official order. Which of these is generally true?

Bipples had the right to record the interaction, and thus her arrest was not proper

What are compensatory damages vs punitive damages?

Compensatory damages give enough money to make you feel whole again (You lose a job where you make 75k a year so you get 75k) Punitive damages are intended to punish the defendant for their behavior

The 5 red flag areas that could make a statement defamatory

Criminal behavior Serious moral failings Incompetence in business or professional life Having a loathsome disease (stigmatized disease like HIV or AIDS) Sexual Promiscuity

Q2Q Wendy Pimples, the mayor of Clifton, said during a special meeting of the city council that she did not promote two police officers, Chester Badge and Deborah Gun, because they had been insubordinate and actually deserved to be fired. The local paper, The Daily Bulletin, reported what Pimples said about the officers - quoting exactly what Pimples said and attributing it to her. Pimples retires a few months later and the city conducted an investigation of Badge and Gun, finding they had never been insubordinate. The city council apologized, and in turn Badge and Gun sued Pimples and TDB. If available this privilege would provide the best defense for TDB:

Fair Report Privilege

Q2Q Frank Hotdog is a reporter for the NYT. He and his colleague Monte Mustard, a famed investigative reporter, write a big story about the US DOJ, accusing the agency of misspending public funds and committing fraudulent acts. The agency sues the NYT for libel. Which of these is true?

Even of the agency is able to satisfy the elements of libel, the agency may NOT sue to protect its reputation.

Q2Q A retraction statute requires a plaintiff to request retractions, which withdraws an earlier statement, before filing a libel lawsuit. Generally, under a retraction statute, a plaintiff's failure to seek a retraction will prevent the plaintiff from filing the suit.

False

Q2Q Journalists sometimes ride along with emergency responders to record them in action and to capture how they do their jobs. When the responders enter private property on official business, journalists generally may enter with them as long as they have obtained the responders' permission.

False

Q2Q The first amendment exemption for trespass allows journalists to briefly enter private property without consent for the purpose of gathering information that is of significant public interest.

False

Q2Q You are a concerned citizen who sends a federal FOIA request to US Rep. Jody Hice, whose congressional district includes Athens. You request copies of his official travel from January 2015 to March 2015. Under the FOIA, the congressman's office must respond, in some way within 20 days.

False

Q2Q If you're criticizing me publicly and I want to silence you, I might file a neutral reportage libel lawsuit, which often is filed with the intent or effect of chilling a person's speech rather than winning the lawsuit on its merits.

False (it should be SLAPP)

Q2Q The CEO of Mastercard says publicly that Delta has been defrauding its customers, and you accurately report on the CEO's statement for a newspaper. The statement turns out to be untrue and libelous. Delta sues the MasterCard CEO for libel - and sues you for repeating the statement in your story. If it is available in your state, the absolute privilege would provide an effective dense for you.

False (it should be neutral reportage)

Absolute Privilege

Government officials speaking in their official capacity are proof This is because if officials were constantly afraid of defamation, they wouldn't speak and government affairs would halt

Q2Q Delbert Doggylips is a professional journalist who is investigating and writing about online child-pornography networks, and he has been arrested and charged with possession of child pornography, a felony per federal law. He obtained a small amount during the course of his reporting. Most likely:

He will NOT be able to successfully to use the first amendment as a defense, because the first amendment does not exempt reporters from generally applicable laws, such as those banning the possession of child pornography.

Q2Q In the context of intrusion claims, it's important to consider whether the plaintiff had a reasonable expectation of privacy under circumstances. Which one of these is not a criterion used to determine whether a reasonable expectation of privacy existed?

How much time the plaintiff has spent in the space

Under what circumstances can police search your phone?

If the police get a warrant before examining the contents

The PPA (privacy protection act) said what about searching journalists?

If you want to search a journalist or their work products, the police need a subpoena, not just a search warrant

What is a one-party consent rule? What is an all-party consent rule?

In a one-party consent state ,only one party of the conversation needs to consent to the recording. It can be the person recording and they do not need to inform the other person. In an all-party consent state everyone involved needs to consent to recording. If it's a phone call between two people in different states, you must follow the most restrictive rule.

Q2Q Melvin and Delbert are best friends. They love One Direction and Lizzy Mcguire. They are 68 and 72 years old and they play Guitar Hero every weekend. One day, Melvin gets mad at Delbert and records them in the privacy of Melvin's home, with the intent to embarrass Delbert by posting the recording on MySpace. Melvin does not tell his friend about the recording at the time he makes it. That would be problematic under a wiretap law:

In a state that has an all-party consent rule

What did Richmond Papers v Virginia establish?

In this case the Supreme Court ruled that it makes good democratic sense for people to see how courts work and assess if they are working properly. It holds courts accountable and give people more respect for the law.

What is indecent speech?

Indecent speech refers to speech that is sexual or vulgar, but does not cross the line into obscenity This is most important to think about in reference to the FCC, they ban indecent programing from broadcast networks from 6am-10pm

What is intrusion?

Intrusion is an offensive physical, electronic, or mechanical invasion of a person's solitude or seclusion (a place with a reasonable expectation of privacy)

What is a FOIA?

It allows any person to request federal agency records for any purpose It can be any person, even an entity Any agency in the executive branch (but not the president) A record is something that sheds light on government activities, the format does not matter You don't even have to tell the government your purpose

What is neutral reportage?

It allows defamatory statements to be repeated if these 4 conditions are met: The statement is made by a prominent person or organization The statement is about another person or organization The statement is a serious charge on a matter of public concern You have to accurately transcribe the information and attribute it to the source

What is the Press Enterprise II test? What are its steps?

It is a two part test that judges use to determine when closure is appropriate for a court case 1. Determine whether there is a presumptive right of access to the proceedings at issue considering both experience and logic -Experience is history (have other cases been open?) and logic asks if it makes good democratic sense for it to be open -Usually condition 1 of this test passes easily because most cases have been historically open and it benefits the public for them to be open 2. If there is such a right, determine whether closure is essential to protect an interest more important then openness, and whether the interest is narrowly tailored First you establish that there is a right to access the proceedings, then you determine if there is something more important than that right

What is Section 230 of the CDA (communications decency act)?

It is the one exception to the republication rule It says that internet developers that create 3rd party platforms where users can post content are not responsible for the libelous statements posted by users It is meant to protect and incentivize early developers It applies to everything other than intellectual property (this has its own rules under the safe harbor act)

Q2Q As a general rule:

It is unlawful for journalists and other non-law enforcement personnel to intercept and record phone conversations between other people

Making a FOIA request

It must be written You need to reasonably describe the records sought They have 20 days to grant or deny the request (you can request expedited processing if you can make a case that there is urgent need for the documents, so you must state your purpose here) There are fees for search and copying (you can make a case for having these waived if you make a case that releasing the records would significantly help people's understanding of government operations)

What is fraud?

Knowingly and intentionally making a false statement OR omission of a material (significant for making a decision) fact to induce someone's action or inaction, ultimately causing damages

Q2Q Koch industries is a privately owned multinational corporation in Wichita, Kansas with subsidiaries in manufacturing, trading, and investments. It was founded in 1940, and today it is seen as politically active - lobbying on many issues. You want to learn more about the company's political activities, so you submit a FOIA request under federal law. Your letter, which is properly formatted and narrowly focused, asks for documents related to the company's political activities from 2016 to 2017. You say there is tremendous public interest in how Koch Industries uses its resources to shape legislation. The company refuses to release any records to you, but it does not cite any exemption to the FOIA.

Koch Industries has not violated the FOIA

What are the 6 defenses we need to know for a libel claim?

Libel-proof plaintiff Absolute privilege Fair report privilege Neutral Reportage Anti-SLAPP statutes Retraction statutes

What is group libel? Can individuals from a group sue for libel?

Making a broad statement about a group of people, this is how an organization can sue for libel Only if the group has less than 30 people

What are the 9 FOIA exemptions?

National security (Used by CIA, NSA, FBI, Homeland Security, and DOD) Agency rules and practices Statutory exemptions (For example, privacy statues like FERPA or HIPA trump a FOIA) Confidential business information (Trade secrets like Coca Cola's secret recipe) Agency memoranda Personnel, medical, and similar files Law enforcement (This one is used too broadly and abused) Banking reports Information about wells

Q2Q The Most famous First Amendment case the Supreme Court decided, arose out of the civil rights movement and set out a new fault standard, actual malice, to be used in libel cases.

New York Times v Sullivan

Q2Q Boston Magazine publishes a front-page feature about teenage drug use in the suburbs. It takes ¾ of the page. Next to it is a picture of a 16 year old girl who recently won the Boston Spelling Bee. The feature is not related to the photo, whose caption identifies the girl as the spelling champion and includes a disclaimer, in 4 point font, that the feature and the photo are not related. The girl's family sues the magazine for libel, claiming that the juxtaposition is misleading and implies the girl is one of the drug users. The family argues the disclaimer is ineffective because of its small size. The magazine disputes those claims and argues it's not even possible to libel a person simply by juxtaposing two things on a page - that libel requires an explicit statement of some kind. Is the magazine right in that regard?

No

Q2Q Peter Parker is a concerned citizen that wants to lean more about the US DOJ's program that allows immigrants to seek "permanent resident alien" status for their children. Parker submits a FOIA request to the DOJ to request related records, including paper documents, computer files, and audio recordings. The DOJ responds saying they won't release the audio because those are not considered "records" under the FOIA. Is that correct?

No

What government branches are subject to the FOIA?

Only the executive branch

Are reporters exempt from generally applicable laws? What case is an example of this and what happened in it?

No, reporters do not get special exemption from criminal/general laws, not even for news gathering US v Matthews, a reporter was arrested for possession of child pornography although it was only for a story he was investigating

What is obscenity?

Obscenity is sexual content that is unprotected by the first amendment, meaning the government can punish people for producing or selling it

Q2Q Who does actual malice apply to today, in other words, what type of plaintiff must prove that the defendant, through actual malice made the defamatory statement at issue

Public Officials Public Figures A and B

What is a quasi public place?

Quasi public places have the characteristics of both public and private places

What does publishing mean in the context of libel?

Revealing defamatory information to any third party, anyone other than the person defamed

Q2Q For the purposes of a libel claim "publishing" means:

Revealing defamatory information to anyone other than the person defamed

Q2Q When you file a federal FOIA request, you must:

State the purpose of the request in your letter if you are requesting expedited processing

Q2Q You are a journalist who learns that a resident of your town is the infamous Swiss Cheese Man, who was arrested last month after he drove down Broad Street throwing slices of Swiss cheese at small children, hitting many of them in the face and yelling. You want to find out why he did it, so you look him up in the phonebook, find his address, and drive to his house, where you ring his doorbell. As you stand on the doorstep, the man comes to talk with you. He says it's okay for you to be there and is happy to answer you questions. After a few minutes though, he grows weary and says he is done answering questions and asks you to leave, but you continue to ask questions. He says you are trespassing, but you say you aren't because he said earlier you could be there, Who is right about the issue of trespassing.

Swiss Cheese Man, meaning you are trespassing

What did Curtis Publishing v Butts establish? What did Gertz v Robert Welch establish?

That public figures (in addition to public officials) are held to the actual malice standard That regular people need only prove negligence, not actual malice

Q2Q Hassan Rouhani, the president of Iran, instructed his chief of staff to investigate whether the US government has separated, at the the border, immigrant children from their parents as a way to deter foreign nationals from coming to the US. Rouhani's chief of staff submits a FOIA letter to the US Department of homeland security asking for copies of records related to such practices in both 2017 and 2018. The department says it is not required to respond because the chief of staff is a foreign national and that the FOIA is available to only US citizens. Which is correct?

The FOIA is available to US citizens AND non-US citizens

What is libel/defamation?

The general term for a legal claim involving injury to a person's reputation caused by false statement of fact.

Q2Q Cecil Hardy Rudolph is notorious in Athens for finger-painting profane words on the front door of City Hall. He does it monthly to protest the city's unfair tax code.He gets arrested every time and his name is well known in athens in connection with his protests, although he is not well known otherwise. He is a private person in other respects. A local farmer writes a letter-to-the-editor that is published in The Daily News accusing Rudolph if being a murderer, killing three of his former lovers in the past 10 years. The letter does not mention Rudolph's protest. Rudolph files a libel suit against the farmer. Based on those facts, Rudolph likely would have to prove fault using this standard:

The farmer published the statement negligently

Q2Q You are a reporter for the R&B covering a large protest near City Hall, where more than 300 activists are gathered in an adjacent public part to criticize the mayor. The protest is peaceful, but the police enter the park to break it up. You are there using a handheld camera to record the protest . As the police move in, you point your camera at the officers making the arrests. One of them orders you not to record, saying you are unlawfully recording the exercise of confidential law-enforcement techniques.

The officer is wrong, and your recording would be protected.

Q2Q In the context of wiretap laws, a one-party consent rule says that any party to a conversation may consent to its recording. Which of these is also true?

The person making the recording may be the person consenting, and that person does not have to notify the other party or parties of the recording.

What is the Sullivan Standard?

The plaintiff has to prove that the statement was made with knowledge of its falsity or with reckless disregard of its truthfulness You prove actual malice through the Sullivan standard

What is a libel-proof plaintiff?

The plaintiff's reputation is already so bad it's impossible to defame them, people think such horrible things about you already

What is the fair report privilege? What two conditions must be met to be protected by it it?

The press can repeat the defamatory statements that government officials make and hold them accountable In order to have protection, the statement must be reported exactly right and accurately transcribed and it must be attributed to the source (name them)

What seven things must you prove to have a valid libel/defamation claim?

The statement is defamatory The statement is false The statement is factual (as opposed to opinion) The statement is about an identifiable person The statement is published The defendant is at fault The plaintiff suffered damages

Q2Q You're a magazine publisher, a fashion designer designs and writes his own ad that features him laying in a pool of jello, the ad includes libel about his competitors. The competitor sues the designer and the magazine. You argue that the magazine isn't liable because you did not create the content, you only published it.

This argument is likely to lose (because of the republication rule, the only exception is section 230 for web developers)

What does Philadelphia v Hepps establish?

This case establishes the burden of proof for libel cases. The burden of proof lies with the plaintiff to prove that the statement said about them is false.

What is the actual malice standard of fault?

This is the standard of fault public figures are held to It says that public officials cannot win unless they prove the defendant made the statement with knowledge of its falsity or with reckless disregard of its truthfulness

What is negligence?

This is the standard of fault regular people are held to It refers to not doing what a reasonable prudent person of ordinary sensibilities would have done under the same or similar circumstances

What is the republication rule?

This rule says that you are liable for republishing the defamatory statements of others The plaintiff can pick and choose who to go after, they can go after the softest target with the deepest pockets

Q2Q In the context of trespassing, you need not own a home to control access to it. You can be a resident or tenant - someone with a right to reside on the property, even if you are not the owner. That includes tenants (like may of you, who pay landlords) and hotel rooms (where you pay the proprietor in exchange for your right to reside in a room).

True

What is trespassing? Can you enter with emergency personnel? Can residents, tenants, or occupants control access?

Trespassing means entering private property without consent or refusing to leave when asked. Trespassing is both a civil and criminal suit, they can be sued separately but simultaneously. Emergency personnel have a legal privilege to enter private property but it does not extend to private citizens and they cannot authorize citizens to enter either Yes

Q2Q Two journalists for the AJC go undercover and apply for jobs with Delta Airlines at Hartsfield-Jackson. SOurces told them that Delta employees have been urinating on passenger bags - and steal underwear out of them - as they transport the bags around the airport. The journalists want to investigate those claims and report on them. They apply for baggage-handling positions and use both fake names and backstories to support their applications. Ultimately, they are hired and use their employees access to prepare a news report that shocks readers and very badly affects the company's stock price. All of what they report is true , but Delta sues the journalists and claims their failure to truthfully to identify themselves has created liability similar to that of the Food Lion case, under the legal theory of:

Tresspassing

When is pretrial publicity prejudicial?

When jurors are so biased that they can't set aside preconceived notions and decide a case solely on evidence (if they have their mind made up beforehand)

Q2Q Which of these would constitute intrusion?

Using a telephoto lens to photograph a woman sunbathing topless on her private patio in a secluded estate Using a small video camera, positioned to shoot through a keyhole to record a man undressing in his hotel room A and B

What methods can courts use to combat pretrial publicity? (4 of them)

Venue - moving the trial to somewhere with less knowledge of the case Sequestering - keeping the jury separate and censoring their media intake (not done unless necessary) Importing - the inverse of venue change, this is bringing citizens from outside the jurisdiction so they are not saturated with media information Delaying - waiting until the intense media coverage has passed

Q2Q Hingle McCringleberry is a UGA student. He believes his longtime girlfriend is cheating on him. He decides to confront her, but he wants to record their conversation. He turns on his phone and slides it into his pocket. It is not visible and he does not tell her that he is recording. She admits to cheating and he posts the recording on facebook. In turn, she hires an attorney to file a claim against McCringleberry under the state's wiretap/ eavesdropping law. Under that type of law, the following is relevant:

Whether the law requires one-party consent or all-party consent Whether the conversation had a reasonable expectation of privacy A and B

Q2Q The Washington Post sent a FOIA request to the US DOD to obtain records related to the capture, detention, and interrogation for high-value detainees at Guantanamo Bay. The DOD denies the request saying the records are exempt. The Post filed a lawsuit to compel the DOD to release the records, arguing they're of high public interest. The DOD is able to show disclosure of the records would degrade the CIA's ability to interrogate detainees and would improve al Qaeda's insight into intelligent activities. Is it likely the records are, in fact, exempt under one of the FOIA's nine exemptions?

Yes

Can sealing orders be challenged?

Yes, a third party may challenge them using Press Enterprise II saying that these records are usually open and your interest is greater than the reason for sealing them

What do you have access to in the judicial branch? What gives you right of access to court proceedings? What about court documents?

You have a first amendment right of access to court proceedings You have a common law right of access to court documents