Mass Comm Law Exam 3

Know the following from Chandler

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

Should the 1st Amendment protect the gathering of information as well as the dissemination of the information? Provide 2 reasons

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New York vs. Gonzales

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Two purposes of contempt power

1. A court can use the contempt power to protect the rights of a litigant in a legal dispute 2. The contempt power can be used to vindicate the law, the authority of the court or the power of the judge.

Explain why jurors should not recieve media reports

1. Confessions or stories about the confession that a defendant is said to have made which include even alluding to the fact that there may be a confession. 2. Stories about 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. 3. Stories about the defendant's past criminal record or that describe the defendant is a former convict 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 associates and personality 6. Stories that tend to inflame the public mood against the defendant 7. Stories that are published or broadcast before a trial that suggest, imply, or flatly declare that the defendant is guilty.

What is the legal reasoning of Nixon?

A qualified privilege might be applicable in other situations but in those cases the need for confidentiality must be balanced against other values. in this case, the need for the tapes in a criminal investigation outweighed need for secrecy.

Corbin

A state legislator was charged with failing to report an income on his federal tax return and with lying to federal agents. • The defendant asked the court to enjoin the press and the government prosecutors from issuing or publishing press releases, mug shots, and photos and videos taken during his so called perp walk into the courthouse. • The judge agreed there had been considerable publicity about the case and the pictures of the defendant in handcuffs might interfere with his fair trial rights. • But the judge pointed out there were seven million people in the federal court district and trial was not scheduled to start for six months • A jury pool this large and by using comprehensive voir dire, an impartial jury could be seated • Request for restrictive order was denied.

What position denies a First Amendment right to gather news and information?

Access to government information today is denied in many ways from secret docketing of cases so the public doesn't even know they exist to the use of the states' secret privilege to withhold documents or testimony that allegedly could jeporadize national security.

Impartial Juror

An impartial juror is one whose mind is free from the dominant influence of knowledge acquired outside the courtroom free from strong and deep impressions that close the mind. US v. Burke

O'Grady

Apple had subpoenaed the operations of both websites in order to find out who leaked to them Apple's secret plan to release a particular computer device. Websites differed fro traditional news periodicals only in their tendency which flows directly form the advanced technology they employ to contiously update their content. • Turning to the first amendment claim of protection, the court found no sustainable basis to distinguish from the reporters, editors, publishers who provide news to the public through traditional print and broadcast media.

Nebraska Press Association

Burger wrote that a restrictive order levied against the press might be permissible where the "gravity of the evil discounted by its improbability justifies such ainvasion of free speech as is necessary to avoid danger" Three part test to evaluate whether a restrictive order that limited the press would pass First Amendment scrutiny. 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 effect of the pretrial publicity • 3. The restrictive order will in fact effectively prevent prejudiced material from reaching potentioal jurors. Prior Restraint is the exception not the rule.

U.S. v. Burr (1807)/Murphy v. Florida (1975)/Patton v. Yount (1984)

Burr - an impartial juror is one whose mind is free from the dominant influence of knowledge acquired outside the courtroom free from strong and deep impressions that close the mind Murphy - the constitution requires that the defendant has a panel of impartial indifferent jurors. They need not however be totally ignorant of the facts and issued involved Patton - The relevant question is not whether the people in the community remember the case, but whether the jurors had such a fixed opinion that they could not judge impartially the guilt of the defendant

Contempt

Contempt of court, often referred to simply as "contempt", is the offense of being disobedient to or disrespectful towards a court of law and its officers in the form of behavior that opposes or defies authority, justice, and dignity of the court. • Dickinson Rule: People must obey even unconstitutional contempt orders until they are reversed.

In what legal setting does Stewart/Burke Test apply or not apply? Why?

Criminal Case: the privilege for the reporter must be balanced against the sixth amendment right of the defendant to compel testimony on his or her behalf.

Shield Law:

Define good and bad aspects of shield law

Who is a journalist?

Determined in In re Madden: A journalist • 1. Who engages in investigative reporting • 2. Who gathers news • 3. Who possess the intent at the beginning of the news gathering process to disseminate theis news to the public.

Nebraska Press Test

Do not forget the middle Prong 2 of the test involves considering all seven possible Sheppard Mandate alternatives to gagging the press Three part test to evaluate whether a restrictive order that limited the press would pass First Amendment scrutiny. 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 effect of the pretrial publicity • 3. The restrictive order will in fact effectively prevent prejudiced material from reaching potentioal jurors. Prior Restraint is the exception not the rule.

Press Enterprise Test

Do not forget the middle Prong 3 of the test involves considering all seven possible SHeppard Mandate alternative to gagging the press • Either the first question OR the second has to be answered positively o Traditionally or historically open o Whether public and press access to this hearing will play a positive role in the functioning of the judicial process • If both of them are a "no" then you look towards the prongs o 1. Whether there is an interest that can be harmed • to ensure a free trial • also protect witnesses' privacy o 2. Substantia probability that something will be harmed o 3. Coincides with the shpeberd's mandage 448 - alternatives to what might solve the problem rather than closing the trial. • Not closing a trial may be expensive o 4. No alternatives, if the judge wants to close the trial/pretrial they have to narrowly tailor it. If you're not tailoring it enough you can actually get charged for improper tactics o 5. Unsupported claims crumble - if someone is trying to close a trial or part of at rial the news media will contest it. That means it immediately has to go into another courtroom and be judged. You've got to document, show your finding, gie your reasons, and support it because it has to have something be judged.

Richmond Newspaper

Everyone has the right, including the press, to attend criminal trials. Many commentators hailed this case as the beginning of a general constitutionally guaranteed "right to know" The Supreme Court ruled the First Amendment does establish for all citizens the right to attend criminal trials.

What aspect of which FOIA exemption does the case US v. Nixon help us understand?

Executive Privilege: doctrine related to the president including a presidential communication privilege. 1. privileges are not absolute 2. while the executive office of the president is an agency subject to FOIA the office of the president is not subject to FOIA 3. the appellate court observed the confines of the presidential communications privileges are construed narrowly balancing a president's need for confidentially and frank advice with the obligation of open government.

9 Exemptions to FOIA

Exemption 1: National Security Matters Exemption 2: Housekeeping Materials Exemption 3: Materials Exempted by statues Exemption 4: Trade Secrets Exemption 5: Working paper/lawyer client privilege materials Exemption 6: Personal Privacy Laws Exemption 7: Law enforcement Records Exemption 8: Financial Institution Records Exemption 9: Geological Data

Journalist argument for why First Amendment gives the right to refuse to reveal a source or information.

Explain the advantages and disadvantages that drive the argument over a qualified privilege for reporters to withold information from the government. Balancing Test: does the public interest in compelling disclosure of iformation outweight the public interest in newsgathering and the free flow of information?

FOIA

FOIA - designed to open records and files long closed to pubic inspections. • The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors, and failures might be revealed or because of speculative or abstract fears. FOIA three goals • 1. To force agencies to accept respond to, and process requests for information. • 2. To limit sharply the ability of bureaucrats to deny access to official records. • 3. To make the government accountable for its nondisclosure decisions.

Citizens for Responsible and Ethics in Washington v. US Department of Homeland Security

Four factors relevant in determing if an agency exercise sufficient control over a document to render it an "agency record" • 1. The intent of the document's creator to retain or relinquish control over the records • 2. The ability of the agency to use and dispose of the records as it sees fit • 3. The extent in which agency personnel have read or relied upon the document • 4. The degree in which the document was integrated into the agency's record system or files.

Stewart/Burke tests key words:

Full prongs need to apply them Justice Stewart: Wrote the test in the perspective of the prosecution • 1. Relevant: Probable cause to believe reporter has information relevant to the specific violation of law • 2. Unattainable: Has party seeking the information (prosecution or defense) tried to obtain it in other ways? o IE. Is reporter the last resort? • 3. Critical: does party seeking the information (prosecution or defense) have a compelling and overriding interest in the info? o IE is it critical to make their case? o IE they have no case without it. • Applies always to a grand jury.

Should the 1st Amendment provide journalists special protection to gather information beyond the right of the general public? Give 2 reasons

GRAMA: Government Record Access Management Act 1 • Sunshine laws: sun shiens on the government, the roof have to be open, there needs to be light to see what the government is actually doing. • Open meeting laws that are abused for many reasons. • Difficult in our society to have open government. In the midst of the battle of FOIA - 1960 a report, called it the "first deadly sin of government " • "secrecy, the first refuge of incompetence must be at a bare minimum at a democratic society. A fully informed public is the basis of self government." • Those in authority must recognize that government cannot be wiser than the people. Caito: In their letter of freedom of speech wrote: • "The administration of government is nothing else but the attendance of the trustee of the people upon the interests and affairs of the people. And as it is the part and business of the people for the sake all public matters must be transacted to see whether they be ill or well transacted. So it's the interests and the ambition to honest officials to have their deeds openly examined. Only the wicked governors of whom dread what is said of them."

Define the constitutional protection of news sources and information

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 pages of your newspaper or on its website then you can be sued.

Associated Press v. US Department of Defense

In 2008 a federal appellate court held that the privacy interests protected by Exemption 6 outweighed any public interest in releasing to AP petition sent by John Walker Lindh the so called American Taliban to the Office of the Pardon Attorney seeking to reduce his 20 year prison sentence after he pled guilty to aiding the Taliban to Afghanistan. • In describing the privacy interests at stake, the appellate court noted that a "petition for communication of sentence requires the applicant to provide his name, social security number, date, and place of birth, criminal record, conviction information, information about any post conviction relief sought, a detailed account of the circumstances surrounding the offense and a detailed explanation of the reasons clemency should be granted." "AP Failed to demonstrate that disclosure of Lindh's petition would serve a cognizable public purpose such that it may not be withheld"

In re Madden

Mark Madden an irresponsible professional wrestler commentator who broadcast his commentary via 900 telephone calls. His commentaries were usually sarcastic sometimes fanciful and always sprovactive. To listen to messages callers paid per minute. World Championship Wreslting owns the ine and paid Madden top operate it. During a commentary Madden reported that the Wordl Wrestling Foundation was in serious financial dffficult. They two companies sued each other claiming unfair competition. The ruling was Madden was not a jouranlist A journalist • 1. Who engages in investigative reporting • 2. Who gathers news • 3. Who possess the intent at the beginning of the news gathering process to disseminate theis news to the public.

Youngtown Pub Co v. McKelvey

No comment policy issued in 2003 by George McKelvy, then the mayor of Youngstown Ohio that directed city employees not to speak with reporters from a bimonthly newspaper called the Business Journal. A judge held that a no comment policy did not violate the First Amendment. • Judge concluded "the right of access sought by the Business Journal is to information not otherwise available to the public and therefore it is 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.

US vs. AD

Ohio Court ruled that in a state juvenile proceedings are neither presumed open or close. The decision must be made by the court on a case by case basis considering whether access to the proceedings could harm the child, whether this harm outweight sthe benefits of public access and whether there are reasonable alternatives to closure. • Courts must make rulings regarding this issue on a case by case basis balancing an interest of all parties involved.

Scrusby

Richard Scrushy, the former corporate chairman and CEO of HelathSouth, the case generated substantial publicity. a federal judge in Alabama issued a broad based restrictive order to block extrajudicial statements by parties and the attorneys The order said • No extrajudicial statements until the final verdict by any participant including witnesses concerning: o 1. Materials provided in discovery in preparation for the case o 2. Character credibility reputation or criminal record of a party or witness, or the expected testimony of a party or witness o 3. Matters that counsel should know would be inadmissible t the trial and would create a substantial risk of prejudicing a trial and o 4. With the exception of Scrusby personally, any opinion to the defendants guilt or innocence. • Participants must remove their existence web pages extrajudicial comments, • Counsel for parties must avoid commenting in court papers that are not filed under seal on evidence • All court personnel must not disclose any information relating to the case that is not part of the pubic record.

Explain one of the FOIA reforms in the 2007 Open Government Act

The OPEN Government Act of 2007 - expanded the description of a record to also include information "maintinated for an agency by an entity under government contract" this change is key: it means that records held by outside private contractors working for the government are subject to FOIA requests.

Irvin

The high court has decided several case relating to pretrial publicity but three decisions stand out. The first stemmed from a series of brutal killings in Indiana. Leslie Irvin was arrested in connection with a series of six murders. Statements that Irvin had confessed to all six killing received widespread publicity. • At trial 430 people were called as potential jurors and 375 told the judge that they believed Irvin was guilty. • Of the 12 jurors seated, 8 told the court that they thought he was guilty before the trial started. Supreme Court overturned Irvin's murder conviction noting that this case, in which so many people so many times admitted prejudice, statement of impartiality would be given little weights.

Lower Court reasoning to deny access to information

The lower federal and state courts tend to mirror the rulings by the Supreme Court that reject the notion of a First Amendment right of access to information and meeting. One exception of several is in 2002 the 9th Circuit Court of Appeal held that the public enjoys a first amendment right of access to view execution from the moment the condemned is escorted into the execution chamber.

Two Constitutional rights clash - 1st vs 6th

The right to a free press and the right to a fair trial. if the press publishes and broadcast 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 the readers and viewers approach the case with prejudice either for or against the defendant? What will happen to the guarantee of a fair trial?

Restrictive (Gag) Order during Trials

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. Some courts issue restrictive orders or gag orders to the press forbidding the publication or broadcast of specific kinds of information or even barring journalists from commenting on aspects of a pending trial.

What happened in the Prison Legal News case?

To override Exemption 7c, personal privacy, those requesting government-held information use the Favish case test, which is the requester: 1) Must show public interest in the info is significant; 2) Must show info is likely to advance that public interest. This relates to the block quote

Pre-Trial Hearings

Trial level remedies for pretrial publicity 1. voir dire 2. change of venue 3. change of veniremen 4. continuance 5. admonition 6. sequestration

Cohen Case

Understand the legal recourse for sources who lose confidentiality ie promissory estoppel test

Sheppard

What the high court suggested was use of court orders called restrictive orders to control the behavior of the participants in the trial. • Limit what they had to say, when they can say it and to whom to speak. Gag Orders: forbidding the publication or broadcast of specific kinds of information or even barring journalists from commenting on some aspects of a pending trial. Two distinct categories: • Orders that are aimed directly at the press, limiting what can be published or broadcast • Orders that are aimed at the participants in the trial, limiting what they can tell the public and reporters about the pending legal matters.

Shoen vs. Shoen

What the lawyer wanted out of the freelance journalist who wrote the book is information about what the father said. • The court got angry with the lawyer for trying to making the freelancer testify when the father was sitting in the courtroom and not calling the father to the stand. • Information is attainable elsewhere. The court ruled that a book author clearly had a right to invoke the first amendment privilege The journalists's privilege is designed to protect investigative reporting regardless of the medium used to report the news to the public.

Prison Legal News

Whether the government can refuse to disclose records by invoking an exemption to the Freedom of Information, when it has already disclosed the same records elsewhere by placing them in the public domain as unsealed evidence in a public trial.

Branzburg

White's statement was dictum in a case that involved the right of journalists to refuse to reveal names of confidential news sources. Justice Byron White: "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 would be eviscerated." Branzburg to consider whether the first amendment privileged journalists not to testify before a grand juries about confidential information.

Agency

any executive department, military department, government corporation, government controlled corporation or other establishment in the executive branch of government or any independent regulatory agency.

Press Enterprise v. Riverside Superior Court

fashioned a complicated test that a judge must apply before he or she can constitutionally close off access to the judicial process. • First thing to determine if the closure issue arises is whether the proceeding or documents in what the law regards as presumptively open or closed. To determine whether the proceeding or document is presumptively open or not, the judge must ask a couple of questions o 1. Whether this kind of hearing has traditionally and historically been open to the press and public o 2. Whether public and press access to this hearing will play a positive role in the functioning of the judicial process • If the judge determines that this kind of hearing has traditionally been open or that allowing the press and public to attend the hearing will have a positive impact, then he must declare the hearing to be presumptively open. It is then up to the seeking to close the case and in doing so, the advocates of closure must: o 1. Advocate an overriding interest that is likely to be harmed if the proceeding remains open or the court permits access to the court document o 2. Prove to the court that if the hearing or document is open go the press and public there is a substantial probability that this interest will be harmed.

Hatfill

in 2007 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. A federal judge ordered six nonparty journalists to reveal the names of their confidential FBI and Justice Department sources that leaked hatfill's name. Walton reasoned that the privileged had been overcome by Hatfill because the actual identity of the source will be important and quite possibly essential in his lawsuit and because Hatfill has exhausted all reasonable alternatives for acquiring the source of leaked information.

Agency Record

includes films, tapes, and even three dimensional objects such as evidence in a criminal prosecution. • Agency Record o 1. If the record is created or obtained by an agency, the record is under agency control at the time of the FOIA request, it is very likely an agency record o 2. If the agency ahs created the document but does not possess or control it, it is not an agency record o 3. If the agency merely posses the document but has not created it, it might be an agency record, or it might not be. If the agency came into possession of the document as a part of its official duties, it is probably an agency record if it just happens to have the document, it is probably not an agency record.

Too Much Media

it is simply not enough to self proclaim oneself a journalist. Here the only evidence in support of defendant's claim that she is a newsperson is her own self serving characterization and testimony as to her intent to gathering information which the trial court found not credible. The court added that 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 regulation institutional journalism.

Exemption 2: Housekeeping Materials

o Matters related solely to the internal personnel rules and practices of an agency

Exemption 1: National Security Matters

o Matters specifically authorized under criteria established by an executive order to be kept a secret in the interest of national defense or foreign policy and in fact properly classified pursuant to such an executive order • 1. Describes justification for nondisclosure in reasonably specific detail • 2. Demonstrates the information withheld logically falls within the claimed exemption • 3. Are not contradicted by evidence in the record or by evidence of agency bad faith.

Criminal Contempt

o Strictly a punishment for a misdeed o Imposed to uphold dignity and authority of the court and its orders. o Note: it's a determinate sentence. Results in a specific fine or a specific amount of jail time.

Civil Contempt

o To coerce a change in behavior. o Indefinite incarceration o Also attached, there might be a daily fine.

Restriction to Access: Rhea (2012) Case

such an email is not an education record because it is not directly related to a student. It is directly related to an instructor and only tangentially relatd to a student and thus the instructor ahs a right to discover who sent the email complaining about him.

Skilling/Mitchell

the Skilling Test 1. Media interference with the proceedings 2. The size and characteristics of the community in which the crime occurred 3. The nature and tone of the media publicity 4. The amount of time elapsed between the crime and the trial 5. Impact of the crime on the community.

US vs. Burke

the defendant was indicted for conspiracy in connection with a basketball point shaving scheme at Boston College and attempted to impeach the testimony of the prosecution's chief witness, a reputed underworld figure. • The defendant asked the court to subpoena the unpublished notes and drafts of Sports illustrated o 1. Confidential sources only when the information is highly material and relevant o 2. Necessary or critical to the defense o 3. Unobtained from other sources.

Exemption 3: Materials exempted by statute

• 1. Is there a specific statute that authorizes or requires the withholding of information? • 2. Does the statue 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?

Houchins

• An inmate at the Santa Rita County Calif. Jail committed suicide in 1975 • Following the death, and a report by a psychiatrist that jail condition were bad, KQED television sought permission to inspect and take pictures in the jail. • Sheriff Houchims announced that 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. • Reporters at KQED took a jail tour but were not happy at the limits placed on them. Justice Burger wrote an opinion in the 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."

Restriction to Access: FERPA

• FERPA: Family educational right and privacy acts • FERPA: Who can access the education records and what the school can and cannot disclose

Exemption 9: Geological Data

• Geological and geophysical information and data including maps concerning wells.

Exemption 5: Working paper/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. Includes Executive Privilege

Exemption 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 institution.

Exemption 6: Personal Privacy Files

• Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy. • To establish that the information or material sought is the kind of information protected by Exemption 6 is the first step. Next, the court must determine that: o 1. The release of this information will constitute an invasion of privacy o the invasion of personal privacy is clearly unwarranted.

Exemption 7: Law enforcement records

• Records or information complied for law enforcement purposes, but only to the extent that the production of such law enforcement records or information

Define and clarify the purpose of the federal Government in Sunshine Act and state open meeting statues

• The Federal Open meetings Law • Affects approximately 50 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 positions by the president with the advice and consent of the Senate.

Exemption 4: Trade Secrets

• Trade secrets and commercial or financial information obtained from any person and privileged or confidential. • Only applies if a three part test is satisfied o 1. The information for which the exemption is sought must be a trade secret or commercial or financial in character o 2. It must be obtained from a person o 3. It must be privileged or confidential.

Privacy Act of 1974: Define its two basic thrusts/purposes

• Two basic thrusts o Check the misuse of the federal government. Protects from the misuse of that information. o Provides access of records to individuals • Act said you have the right to find out from any level of government any information they actually have on you.