JRN 430: Final Exam

sources of privacy protection

(1) U.S. Constitution (2) Federal and state laws or statutes (3) Tort law

common law

unwritten, judge-made law consisting of rules and principles developed through custom and precedent - used in UK, US and (some) Canada

fighting words

words not protected by the first amendment because they cause immediate harm or illegal acts. they are... directed at an individual, inflict immediate harm, or trigger immediate violence (ex. chaplinsky v. NH, calling a cop "damned fascist")

libel

written defamation

is freelance protected?

yes, if they have a contract with a news organization

generally applicable law

a law that is enforced evenly, across the board. within first amendment contexts, it is the idea that the freedom of the press clause does not exempt journalists and news organizations from obeying laws

libel per se

a statement whose injurious nature is apparent and requires no further proof

libel per quod

a statement whose injurious nature requires proof

amicus brief

a submission to the court from an amicus curiae, or friend of the court, interested individuals or organizations that are parties in the case

ride-alongs

a term given to the practice of journalists and other private citizens accompanying government officials - usually those in law enforcement or other emergency response personnel - as they carry out their duties (need to get approved in writing)

strict scrutiny

a test for determining the constitutionality of laws aimed at speech content, under which the government must show it is using the least restrictive means available to directly advance a compelling interest

publication

a third party (someone other than the plaintiff and defendant) must have seen or heard and understood the allegedly defamatory material. courts assume (take judicial note) that a third party has seen or heard material that was in a mass medium

prior restraint

action taken by the government to prohibit publication of a specific document or text before it is distributed to the public; a policy that requires government approval before publication

conditional (or qualified) privilege

an exemption from liability for repeating defamatory words of and concerning another because the original statement was made within the performance of duty such as in judicial or political contexts; usually claimed by journalists who report statements made in absolutely privileged situations; this privilege is conditional (or qualified) on the premise that the reporting is fair and accurate

criminal contempt

conduct in or near the court that willfully disobeys a court order or obstructs court proceedings, often directly interferes, sometimes called "direct contempt"

sedition act or 1798

federal legislation under which anyone "opposing or resisting any law of the United States, or any act of the president of the united states" could be imprisoned for up to two years. the act also made it illegal to "write, print, utter, or publish" anything that criticized congress or the president. the act expires in 1801 and ultimately was seen as a direct violation of the First amendment. replaced by just "sedition"

negligence

generally, the failure to exercise reasonable or ordinary care

negligence in libel law

generally, the failure to exercise reasonable or ordinary care. usually the minimum level of fault a plaintiff must prove in order to receive damages

contempt

gives judges broad, discretionary power to punish willful disobedience of a court order, misconduct in court, or interference with the administration of justice

public forum

government property held for use by the public, usually for purposes of exercising rights of speech and assembly

nonpublic forum

government-held property that is not available for public speech and assembly purposes

the hazelwood test

hazelwood v. Kulmeier. school is required not just permitted to control the content of a school paper to achieve educational goals. (because speech is endorsed by the school) - administrators may restrict if they want to

public figure

in libel law, a plaintiff who is in the public spotlight, usually voluntarily, and must prove the defendant acted with actual malice in order to win damages

actual malice

in libel law, a statement made knowing it is false or with reckless disregard for its truth

retractions statutes

in libel law, state laws that limit the damages a plaintiff may receive if the defendant had issued a retraction of the material at issue. they are meant to discourage the punishment of any good-faith effort of admitting a mistake

bootstrapping

in libel law, the forbidden practice of a defendant claiming that the plaintiff is a public figure solely on the basis of the statement that is the reason for the lawsuit

textualists

judges (supreme court justices) who rely exclusively on a careful reading of legal texts to determine the meaning of the law

admonitions

judges' instructions to jurors warning them to avoid potentially prejudicial communications

content-based laws

laws enacted because of the message, the subject matter of the ideas expressed in the regulated speech (strict scrutiny)

content-neutral laws

laws enacted to advance a government purpose unrelated to the content of the speech (time/manner/place laws) (intermediate scrutiny)

section 230 immunity

legal protection for content produced by others - IPSs/ websites/ apps solicit or encourage users to submit content - IPSs/ websites/ apps pay a third party to create or submit content - IPSs/ websites/ apps provide forms or drop-downs to facilitate content submission by users, so long as the forms and drop-downs are neutral ***still open for court decision

vendors and distributors

selling or distributing is not the same thing as publishing. sellers/ distributors (e.g., bookstores) are not expected to know the content of everything they distribute

slander

spoken defamation

shield laws

state laws that protect journalists from being found in contempt of court for refusing to reveal sources

limited-purpose public figure

steps into the spotlight voluntarily, must play a role in the resolution of an important public pr social controversy, tries to influence public opinion in the resolution of the issue (access to the media)

wire service defense

story provided by reputable news gathering agency, "didn't know the story was false," nothing to reasonably alert the defendant of possible falsity

SLAAP

strategic lawsuit against public participation - a lawsuit whose purpose is to harass critics into silence, often to suppress those critics' first amendment rights

Ollman Test for Opinion

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

4 principles of the rule of law

1. all individuals and private entities are accountable under the law 2. the laws are clear, public, stable, and just; are applied evenly; and protect fundamental rights 3. the process by which laws are enacted, administered and enforced is accessible and fair 4. justice is delivered in a timely manner by a competent, ethical, independent, and neutral representatives, who serve the public good

what are the 6 sources of the law?

1. constitutions 2. statutes 3. equity law 4. common law 5. administrative law 6. executive orders

6 core values of free speech

1. individual liberty 2. self-government 3. limited government power 4. attainment of truth 5. safety valve 6. its own end

FOIA 9 exemptions

1. national security 2. internal agency rules and procedures 3. disclosures forbidden by other statutes 4. trade secrets 5. agency memoranda 6. personal privacy 7. law enforcement records 8. financial records 9. geological information

qualified privilege test (does not protect)

1. possession (probable cause to believe that the reporter has information clearly connected to a specific violation of law) 2. no alternatives (that the information sought cannot be obtained by alternative means less destructive of first amendment values) 3. relevance (that there is a compelling and overriding interest in that information)

test for jurisdiction

1. whether the defendant purposefully conducted activities in the state 2. whether the plaintiff's claim arises out of the defendant's activities there, and 3. whether the exercise of jurisdiction would be constitutionally reasonable

freedom of information act (FOIA)

1996 act that required help by federal government agencies to be made available to the public, provided that the information sought does not fall into one of the nine exempted categories

originalists

supreme court justices who interpret the constitution according to the perceived intent of its framers

Four privacy torts

1. False Light (making a person appear to be someone he or she is not) 2. Appropriation (using another's name) 3. Intrusion (intruding on another's seclusion) 4. Private Facts (publicizing private information)

the incitement test

Brandenburg v. Ohio 1969 KKK, Hess v. Indiana. Allows punishment of "advocacy of illegal action" if the speech is directed toward inciting immediate violence or illegal action and likely to produce that action

hate speech

a category of speech that includes name-calling and pointed at criticism that demeans others on the basis of race, color, ethnicity, gender, religion, national origin, disability, intellect, or the like

fair comment and criticism

a common law privilege that protects critics from lawsuits brought by individuals in the public eye

defamation

a false communication that harms another's reputation and subjects him or her to ridicule and scorn; incorporates both libel and slander

gag orders

a nonlegal term used to describe court orders that prohibit publication or discussion of specific materials

libel-proof plaintiff

a plaintiff whose reputation is deemed to be so damaged already that additional false statements of and concerning him or her cannot further harm

tort

a private or civil wrong for which a court can provide remedy in the form of damages

fair report privilege

a privilege claimed by journalists who report events on the basis of official records. the report must fairly and accurately reflect the content of the records; this is the condition that sometimes leads to this privilege being called "conditional privilege"

single-publication rule

a rule that limits libel victims to only one cause of action even with multiple publications of the libel (only one remedy)

dissenting opinion

a separate opinion of a minority of the court or a single judge or justice disagreeing with the result reached by the majority and challenging the majority's reasoning or the legal basis of the decision

concurring opinion

a separate opinion of a minority of the court or a single judge/ justice agreeing with the majority opinion but applying different reasoning or legal principles

intermediate scrutiny

a standard applied by the courts to review laws that implicate core constitutional values; also called heightened review

seditious libel

communications meant to incite people to change the government; criticism of the government

civil contempt

compel an individual to do something, such as name a source or turn over notes, also when someone intentionally disobeys a court order

cameras in the courtroom?

depends on state laws

promissory estoppel

enforcing a promise when its breached. a legal doctrine requiring liability when a clear and unambiguous promise is made and is relied on and injury results from the breaking of the promise

neutral reportage

in libel law, a defense accepted in some jurisdictions that says that when an accusation is made by a responsible and prominent organization, reporting that accusation is protected by the first amendment even when it turns out the accusation was false and libelous. - the story is newsworthy and related to a public controversy - the accusation is made by a responsible person or group - the charge is about a public official, public figure or public organization - the reporting is neutral

all-purpose public figure

in libel law, a person who occupies a position of such persuasive power and influence as to be deemed a public figure for all purposes. plaintiff's required to prove actual malice

can we assume that judges and jurors are free of prejudice?

no

responsible reporting

no mistakes or malice

do news organizations have the same rights as individuals?

not necessarily

republication

often what the media does, republish another's statements. just as responsible for distributing libelous material as the originator

Newsgathering Protections

open-government laws - the people's right to know. connected with accountability and transparency

plaintiff's case: false light

plaintiff must prove: - publication - identification (material was of and concerning the plaintiff) - falsity - the published material put the plaintiff in a false light that would be highly offensive to a reasonable person - actual malice (or negligence)

continuance

postponement of a trial to a later time

access to trials

presumption of open trials (fair and unbiased expectations)

doctrine

principles or theories of law (e.g., the doctrine of content neutrality)

public property

property owned by the government - police control of crime sites and other locales

media liability of negligence

reasonable foreseeability, proximate cause. having a duty to the plaintiff or negligently distributing the material

true threat

speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety

reporter's privilege

the concept that reporters can keep information such as source identity confidential. - promises of confidentiality - first amendment - duty to testify (subpoenas)

chilling effect

the discouragement of a constitutional right, especially free speech, by any government practice that creates uncertainty about the proper exercise of that right

Rule of Law

the framework of a society in which pre-established norms and procedures provide for consistent, natural decision making

jurisdiction

the geographic or topical area of responsibility and authority of a court

sequestration

the isolation of jurors to avoid prejudice from publicity in a sensational trial

judicial review

the power of the courts to determine the meaning of the language of the constitution and assure that no laws violate constitutional dictates

civil law

the system of law concerned with private relations between members of a community rather than criminal, military, or religious affairs. different from common law, only used in one state (Louisiana), also used in Quebec

USA PATRIOT Act (2001)

the uniting and strengthening America by providing appropriate tools required to intercept and obstruct terrorism act of 2001. the act gave law enforcement agencies greater authority to combat terrorism

statute of limitations

time is overdue

the tinker test

tinker v. des moines independent community school district. speech stands in a school setting, as long as it is not disruptive to learning

quash

to nullify or annul, as in quashing a subpoena

affirm

to ratify, uphold or approve a lower court ruling

overrule

to reverse the ruling of a lower court

remand

to send back to the lower court for further action

private property

trespass - laws of general application. permission to enter must be given or denied by the owner or resident

quasi-public property

voting sides, government lands, military bases, prisons, etc. generally not open to the public or journalists

the plaintiffs case for libel

- a statement of fact (not opinion) - that is published - that is of and concerning the plaintiff (identification) - that injures the plaintiff's reputation (defamation) - that is false and - that causes damage (or harm) and - for which the defendant is at fault

for intermediate scrutiny to be constitutional...

- fall within the power of government and - advance an important or substantial government interest that is unrelated to the suppression of speech and - be narrowly tailored to impose only an incidental restriction on First Amendment freedoms

when is prior restraint constitutional?

- obstruction of military recruitment - publication of troop locations, numbers and movements in time of war - obscene publications - incitements to violence - forcible overthrow of government - fighting words likely to promote imminent violence

proximate cause

determining whether it is reasonable to conclude a defendant's actions led to the plaintiff's injury

clear and present danger

doctrine establishing that restrictions on first amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm

offensive speech

ex. Cohen v. California "F*** the Draft" jacket. not always what you say, but also how you say it

due process

fair legal proceedings, guaranteed by the fifth and fourteenth amendments to the US constitution