Media Law Final Exam

Public's "right to know" v. other priorities, like privacy, due process

"A democracy without an informed public is a contradiction" - Thomas Emerson. Richmond Newspapers v. Virginia: the point there is that the public's right to know how the state grants or withholds or otherwise adjudicates a citizen's life, liberty and pursuit of happiness in a criminal prosecution outweighs any one participant's interest in safeguarding his or her own privacy or, more generally, concerns that that public-ness might jeopardize 6th-, 5th- and 8th-amendment due process guarantees. Generally.

Georgia Open Records Act of 1959

● Covering state, county and municipal ○ Public can evaluate the expenditure of public funds ○ Public can evaluate the "efficient and proper functioning of its institutions" ○ To "foster confidence in gov't" - Athens Observer v. Anderson (1980) Exempt: Investigations; certain real estate documents; attorney-client privilege documents; and names of handgun carriers. Electronic records open

Exemptions to Open Records Act

● Exempt by court order ● Exempt by requirements of another statute, just as at the federal level; FERPA, Privacy Act medical records, student records, vehicle registration records

USA PATRIOT Act

● Passed 2001 after 9/11 ● Enhanced surveillance procedures for gov't agencies: allows the government to obtain information about anyone from public libraries, businesses, hospitals and internet service providers. The government has to say only that the information is being sought for a terrorism investigation. The person revealing the information is not allowed to tell anyone else that the government asked for it. ● All necessary to fight "war on terrorism" Gather foreign intelligence

Fourth Amendment

● Prohibits unreasonable search and seizures ● Requires warrant to be judicially sanctioned and supported by probable cause

Privacy Protection Act of 1980

● Protects journalists and newsrooms from searches by the government. They do not have to turn it over to the law before it is disseminated. ● Stemmed from Zurcher v. Stanford Daily ● Limited exceptions apply if all other remedies have been exhausted. Agents may seize information related to national security, child pornography, evidence that a journalist committed a crime, or documentary materials to prevent their destruction, or the death or other serious injury of individuals.

Dale Earnhardt death scene photos

● Public figure ● Public concern because it dealt with the model and make of his race car ● The Daytona 500 death of Dale Earnhardt Sr., dad to subsequent Nascar success Dale Earnhardt Jr. Orlando Sentinel wanted the death scene photos, citing public interest in safety at Nascar races. Overruled in the interests of privacy for the family, who motioned to deny access to the photos.

Salameh trial after WTC bombing

● Show the pendulum for gagging ● Ridiculous for punishment, can't do that- he gagged everyone

Georgia Open Meetings Act of 1965

● Two part Test ○ Meeting of a gov't body ○ Official business of policy of body to be discussed and/or acted upon ● Excluded by test → personal meetings/staff meets

Free Flow of Information Act (federal shield law that has been proposed)

● a bill intended to provide a news reporter with the right to refuse to testify as to information or sources of information obtained during the newsgathering and dissemination process The Free Flow of Information Act would create a federal shield law, similar to those in almost all states, that would protect reporters from punishment for refusing to disclose their confidential sources in any federal criminal or civil case, unless those authorities meet strict criteria

Vincent Foster death scene photos

● an example of when access to info is not allowed ● Lawyer thought death was suspicious and wanted scene photos -- Suicide ● Privacy because lawyer thought suspicious and wanted photos of death BUT family didn't want photos of Foster in public ● Wasn't a "public concern" or needed to be published ● right of privacy under FOIA extends surviving family members ● when the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure.

McIntyre v. Ohio Elections Commission (1995)

Protection of anonymous speech, Ohio struck down the Ohio law against anonymous political literature → Still have to prove 6 libel hurdles First protection of anonymous speech

How do you use FOIA?

Request the records through telephone, email, or mail. Agencies have 20 working days to respond (not comply). Burden of proof is on the gov. to show why delay or non-disclosure is valid

Estes v. Texas, 1965

SC ruled that the First Amendment did not give the press the right to take photographs during a trial, but did say that at some point in the future when technology was not so obtrusive it might be allowed. Decision said: 1. Cameras interfere with jury - pressure due to exposure. 2. Interfere with witnesses - intimidating. 3. Impact on judge - burden of control. 4. Impact on defendant - harassment. USSC overturned the fraud conviction of petitioner Billy Sol Estes holding that his 14th due process rights had been violated by the publicity associated with the pretrial hearing, which had been carried live on both tv and radio

ISP immunity/Section 230 of the Communications Decency Act of 1996

Section 230 of the Communications Decency Act of 1996 (a common name for Title V of the Telecommunications Act of 1996) is a piece of Internet legislation. It provides immunity from liability for providers and users of an interactive computer service who publish information provided by others

Richard Jewell and the Centennial Park bombing

Security guard. Vortex public figure. Becomes a person of interest. Put through a trial by the media. Defended himself in the public square and therefore surrendered private citizen status. Can never get it back

Other realms of privacy (solitude, intimacy, reserve, anonymity)

Solitude: The pristine state of privacy Intimacy: Mutual understanding Anonymity: To disappear / not be known Reserve: Control over your info., who you are, and how much you share.

FOIA, 1966

Stated that a person has a right to obtain access to federal agency records. · Excludes White House, Congress, Federal Courts

Open Government Act, 2007

Strengthens public disclosure requirements that cover lobbying activity and funding

Nebraska Press Assn. v. Stuart: 3 factors before prior restraint is allowed

Supreme Court classified gag orders on the media as the most serious and least tolerable prior restraint on First Amendment rights. Gag orders on the media must meet the highest standard of review. Supreme Court found a restraining order against two newspapers constitutional because it did not prevent them from publishing the same information if they obtained it outside of trial discovery[HML1] . Whole family brutally murdered, mentally-ill neighbor confused Judge "gag-ed" everyone, you can't disobey a gag order Nebraska SC upheld most gag laws BUT 5 months later → SC ruled gag laws were unconstitutional 3 factors before Prior Restraint/Gag Order: Consider nature and extent of news coverage, checked box if intensive and pervasive publicity Consider whether or not other measures would likely mitigate the unrestrained pre-trial publicity Sequester jury Move trial Carefully question jury Admonish jury Close courtroom Consider effectiveness of a restrictive order in diminishing the effect of the pre-trial publicity

Times v. Sullivan, 1964 (advertising)

Supreme Court in New York Times Co. v. Sullivan provided First Amendment protection to the paid self-promotion of the civil rights movement at the center of this landmark libel ruling.6 Sullivan limited the scope of Chrestensen. The Court distinguished the Sullivan ad, which communicated information, expressed opinions and sought support "on behalf of a movement whose existence and objectives are matters of the highest public interest and concern,"7 from the mere proposal of a commercial transaction. "That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold," the Court wrote

Source confidentiality and Reporter's privilege

Tension: right to due process, having all info and available to prove one's guilt or innocence vs. reporters right to source confidentiality The right to not be compelled to testify or disclose sources and info in court; protecting sources is ethical, but not always end well for reporter. Involves 3 factors: possession, alternatives, and relevance. Varies across states.

FTC Act of 1914

The Federal Trade Commission Act of 1914 established the Federal Trade Commission. The Act, signed into law by Woodrow Wilson in 1914, outlaws unfair methods of competition and outlaws unfair acts or practices that affect commerce

The single mistake rule

The community would not think less of a doctor or businessperson who made a single error. Stories that suggest a pattern of incompetence that go beyond asserting a single error, are defamatory

• Publication of private facts

The defendant gave publicity to private facts about the plaintiff, the disclosure of which would be highly offensive to a reasonable person in the plaintiff's situation and the facts disclosed are not a matter of public concern. In libel, publication to a third party, someone other than the plaintiff and defendant, is sufficient. For the private facts tort, most courts require widespread publicity. Revealing intimate information in the media will meet the definition of publicity

Intrusion

The defendant intentionally intruded, physically or otherwise (electronically), on the plaintiff's solitude/seclusion. The intrusion would be highly offensive to a reasonable person in the plaintiff's situation. Journalists should not assume people involved in a news event occurring on public property do not have a reasonable expectation of privacy. o Example: An automobile accident victim reasonably expected discussions with emergency personnel to be private even if medical treatment took place on the side of a public road. Defenses o Consent (for trespassing) o The Ninth Circuit Court of Appeals said a story's newsworthiness may reduce the intrusion's offensiveness

• False light

The defendant portrayed the plaintiff in a false light that would be highly offensive to a reasonable person in the plaintiff's situation. Basically dead. *can't use terms from libel law for privacy laws (p.f., p.c., etc.) Defenses o libel defenses (if defendant proves all elements of her case) o ex: fair report priveledge o anti-SLAPP laws o truth

What are its exemptions?

The government can withhold records only if it is "reasonably foreseeable" that disclosure would harm one of the interest's protected by FOIA's exemptions" Exemptions include: -National Security -Internal agency rules and procedures (like break/shift procedures) -Disclosures forbidden by other statutes/ statutory exceptions -Trade secrets -Agency memoranda -Personal privacy (withholding of medical files) -Law enforcement records -Financial records -Geological Information

Bigelow v. Virginia, 1975

The state of Virginia could not prohibit advertising for a legally sanctioned service (Roe v. Wade - abortion)

Reno v. ACLU, 1997

a law that bans sending "indecent" material to minors over the Internet is unconstitutional because "indecent" is too vague and broad a term Online media is most like print Constitution protected commercial expression Activities and expression government can regulate

Privacy law as tort law:

appropriation, intrusion, publication of private facts, false light

Gertz test

o Is this a public controversy or issue? Does it matter? o Did the plaintiff participate in this public controversy voluntarily? § Ex: PTA mom who is outspoken about something o Would the public figure factor affect the outcome?

Other libel defenses (besides the hurdles)

· *Summary judgment:* review the facts and the case is dismissed outside of court · *Consent* · *Statute of limitations*: sets the maximum time the parties involved have to initiate legal proceedings from the date of an alleged offense, whether civil or criminal. · *Jurisdiction:* o digital libel knows no jurisdiction · *Wire service defense *(McKinney v. Avery Journal - Cannot fact check everything they are getting from the wire services) · *SLAPP designation* (Strategic lawsuits against public participation - using libel to shut someone up) · *Rule 11* (Term that triggers the motion to ask the court to consider a summary judgement on the basis to recognize a SLAPP lawsuit) · *The truth* (optional defense - different from falsity. falsity must be cleared). · *Absolute privilege* (Covers the speaker and not the media. Politicians have absolute privilege) o covers public officials in their official duties · *Qualified privilege* (Fair Report - protects media from libel suits when reporting on government) o news can report if Senator A defamed Senator B · *Neutral reportage* (Don't shoot the messenger) · *First Amendment opinion defense*; fair comment and criticism o Where something is opinion, it should be protected. Fact claim = treated differently) o Milkovich v. Lorain Journal (1991) - fact claim, he lost.

Jesse Ventura v. Estate of Chris Kyle (author, Navy SEAL)

· American sniper case - Ventura was never named in the book, but you can tell it's him. Book claims he insulted deceased Navy Seals and got in a bar brawl. · Identity and Falsity - defamed · Clear identification was proven (Kyle said he was referring to Ventura in an interview), had to prove actual malice because he was a public figure. Had to sue before Chris Kyle's death → Dead people can't sue. He did start legal proceedings before Kyle's death. Courts overturned [disagreed with] his reward. As of now, he has reached a settlement

Gertz v. Welch, 1983

· Gertz was a publicly known civil rights lawyer who took a police brutality case. He was hired by a family to sue a police officer who had killed the family's son, libeled/defamed by a magazine, saying he was a "communist-fronter" because he chose to represent clients who were suing a law enforcement officer. o Public or private citizen? He wanted to be considered a private citizen since it had nothing to do with his work as an attorney. · Justice Powell argued that the application of Times v. Sullivan standard in this case was inappropriate because Gertz was neither a public official nor a public figure. o Well known, in the news... but court ruled private citizen & only negligence. Gertz won

Retraction statutes

· In libel law, state laws that limit the damages a plaintiff may receive if the defendant has issued a retraction of the material at issue. Retraction statutes are meant to discourage the punishment of any good-faith effort of admitting a mistake. · Retraction laws: publicly admitting guilt by pulling something out of circulation and saying that it was wrong · retraction laws in Georgia

Firestone v. Time, 1972

· Mary Firestone filed for divorce from her husband · Time Magazine printed an article reporting that Firestone's "extreme cruelty and adultery" caused the divorce. Firestone requested a retraction, but Time refused. Sued for Libel. o Mary got divorced, but not for that. · Justice Rehnquist wrote the majority opinion vacating the lower judgment and remanding It was determined that she was not a public figure (private citizen when it came to divorce) so her private life was hers and no one else. The Supreme Court held that the actual malice standard for media reports on public figures did not apply to this case.

Milkovich v. Lorain Journal

· Milkovich was a wrestling coach who was called out for lying under oath about fighting at a wrestling match. → Used the Ollman test o Can a statement be proven true/false? (Verifiability) o What is the common/ordinary meaning of words? (Common Meaning) o What is the journalistic context of the remark? (Journalistic Context) o What is the social context of words? (Social Context) · Justice William Rehnquist said if something can be proven true or false (a fact claim), that is not opinion. Milkovich lost

Burnett v. National Enquirer, 1981

· National Enquirer said Burnett was drunk and ate Kissinger's dessert. · She won because it was a reckless disregard for the truth. (actual malice) First major win for a plaintiff and loss for media

David Bar Katz v. National Enquirer, 2014

· New York Broadway playwright who was really good friends with a man who died. · He was there the night his friend died. Called 911 · The wrong David Katz was Interviewed by the National Enquirer and they ran the story that they were lovers and did drugs together Libel - because it was all false. Article was withdrawn

Lohrenz v. Donnelly, 2003

· One of the first 2 women to become navy combat pilots · The other female dies because of airplane malfunction · people claimed Lohrenz was incompetent as a woman to fly · Courts said by being a pioneer, she was a public figure. She needed to prove actual malice.

Hustler v. Falwell

· a fictitious interview with Rev. Jerry Falwell in which it was said that "his first time" was with his mother in an outhouse. Included a small disclaimer. Falwell sued for libel, invasion of privacy, and infliction of emotional distress. · Judge dismissed the privacy claim but sent the libel and emotional distress cases to court. Jury dismissed the libel claim noting that it was so farfetched, no one would believe it was intended as the truth; but awarded $200,000 in emotional stress damages; U.S. Appeals Court upheld; U.S Supreme Court reversed. · Public figures must prove actual malice to recover for intentional infliction of emotional distress from a publication. · Loses libel case because there is no way that's true · Emotional case so he kind of won -- Parody

Types of damages

○ *Compensatory (actual)* damages: proven, asks for millions ($), personal physical injury has occurred, price tag on harm. ○ *Special damages*: $ when you lose your job, have to move due to damages, actual expenses due to the injury ○ Compensatory and Special take little to prove. Easy. ○ *Punitive damages:* The candy. Juries give sky high rewards. Judges seem to understand better. ■ Punishes for actual malice, big $$$, jury decides

Exceptions to open courts/open trials (4)

○ Jury hearings ○ victim/witness priority ○ Military ○ Out-of-court settlements

Privacy Act of 1974

● Agencies give the public notice that their systems of record by publication in fed. Register ● Prohibits disclosure of info without consent ○ Exceptions are for law enforcement or congressional investigations, census or labor statistics, and archival of historically significant material. ● Gov't can only use "personally identifiable record" for purpose of was created and why info was gathered. ● If F.O.I.A. mandates disclosure of information protected under the Privacy Act, F.O.I.A. prevails. ● The Act only governs or regulates information collected by the government and, basically, restricts government to using that information ONLY for the reason it was gathered, such as issuing a driver's license or administering a military draft or for census purposes. That's the overall takeaway ● Private information: any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph

Remedies at a judge's disposal

-Change of venue or a shift in the location of the trial -Change of venire, or changing the jury pool used to select jurors for trial -Continuance, the legal term for postponement, until publicity blows over. Defendant has to yield his/her right to a speedy trial. -Severance, or trying defendants separately when more than one charged with the same or related crimes -Voir dire, the term for questioning potential jurors prior to selecting jury for trial -Sequestration, or securing, quarantining (SORRY!) of the jury during trial. Very expensive and very disruptive to jurors' lives, making them unpredictable -Judicial admonition, instructing jurors from the bench -New trial, as a last resort

Types of prejudicial press coverage

-Confessions. Fifth Amendment protects persons against testifying against themselves. Confessions can be ruled inadmissible or retracted. -Prior criminal records. Ordinarily inadmissible. -Results of lie detector tests, blood tests, ballistics tests, and other investigatory procedures. Sam Sheppard, for example, refused a lie detector test; it was reported in the media as a sign of guilt. -Character flaws or lifestyle: interviewing neighbors who say he beat his wife and kicked his dog or hangs out with mafia types, or spits on little children; rumors and hearsay. Stories on potential witnesses, testimony, evidence, even the judge, particularly those that question credibility. -Speculation by officials. Sam Sheppard's mouthy detective, for example, who told a newspaper he thought Sheppard did it. -Sensational or inflammatory statements, like nicknaming a defendant, "Mad Dog" Irvin or "Monster in Chains." Even letters to the editor.

Chandler v. Florida, 1980

1 > 6 amendment Chandler was a cop, decided to rob restaurant and is overheard on the police scanner. He was caught and arrested and the trial was televised. The cops were convicted. Tried to use Estes ruling but TV wasn't a big deal anymore. People were used to TV by then so it wasn't an unfair trial. Miami, PD - big cameras in courtrooms After losing appeals, said big cameras kept them from having a fair trial and lost. ○ Set the precedent for states choosing to allow cameras Even more so now because cameras are so small

Commercial speech v. political speech (four major contrasts)

1) Political Speech is a compelling speech and there must be a compelling interest such as national security during war. · Commercial speech - substantial - could be protecting aesthetics of a community. 2) False political speech is allowed, false commercial speech is not. 3) Prior restraints allowed much more readily with commercial speech - porn, gambling, alcohol 4) Commercial speech can be compelled such as surgeon general warnings or side effects of medication. PS cannot be compelled.

Why don't reporters want to reveal their sources? (3 big reasons)

1) Trust is lost between reporter and source 2) Laziness on behalf of law enforcement to not do their own investigation Harassment - courts will litigate the press to death and not allow them to be

The Six Hurdles of Libel

1. *Defamation:* Damaging reputation. To defame / take away from someone. To taint/tarnish the public's view of them. a. Ex: Burnett v. National Inquirer 1981 & was first big media loss for libel 2. *Identification:* By name or characteristics. Doesn't have to be by name. a. If there's a 15-100 people group, it is very unlikely that a group could win by identification, but it is possible 3. *Publication *(and republication): Published or not? When did most people have the chance to see it? - Practical exposure. a. Ex: Reno v. Accu 1997, internet is more like print than broadcast. b. Republication rule: If you reprint libel, you can be sued too 4. *Fault:* Plaintiff must prove fault. a. Times v. Sullivan (ends seditious libel) police officers treatment of civil rights activists - must prove actual malice or negligence b. Actual Malice - Public officials and public figures (celebs) c. Negligence - Private Citizenship d. Gertz v. Welch e. Firestone v. Time f. Burnett v. National Enquirer 5. *Falsity*: not one mistake, intentional negligence 6. *Injury*: how much money can you get for damages a. can be psychological b. Compensatory - harm done c. Special - salary, move, therapy d. Punitive - jury takes care of it, huge rewards, actual malice is the fault level even if private citizen

Three kinds of libel defamation

1. *Libel per se:* most commonly sued, obvious libel, no interpretation needed. "He embezzled." a. Ex: if the media displays a murderer as a "mad dog," he is less likely to win in court 2. *Libel by interpretation:* Assuming/needs interpretation. Multiple readings available and one is libel. "He's gay." a. Example: Renwick v. News & Observer (1984) "He's racist" i. Newspaper said the Dean denied 800 African Americans admission because of their race. ii. Dean sued with libel per se, but should have sued by libel per interpretation iii. How many others did he admit? Could make a difference. iv. Renwick might have won because the erroneous number of admitted people had no context 3. *Libel per quod*: Libel by circumstance. The story becomes defamatory when you add something not in the story but in public knowledge. Example: He was seen at 123 Main Street. Would not seem defamatory, but everyone knows that's a drug-manufacturing lab.

Plaintiff categories

1. All purpose public figures - must prove malice (Ex: Bill Gates, Miley Cyrus) 2. Limited/vortex public figures - public except in this case. The court case can't be what makes them a public figure. c. Actual malice extends to them only if it involves their field of expertise d. Ex: a blogger who is a well-known authority on clinical research involving autism may be considered a public figure for purposes of controversies involving autism, but not for other purposes. 3. Private citizens - Must prove only negligence 4. Public officials (elected) - must prove malice b. Even after passage of time or leaving office, public officials must still meet the actual malice standard

Advertising categories that CAN be banned

1. False Advertising 2. Misleading ads 3. Ads for illegal goods/services 4. Time/place/manner restrictions and regulations permitted if content-neutral and there is a substantial government interest.

First v. Sixth First Amendment; Sixth Amendment

6th amendment: The Sixth Amendment guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you Access to prisons. The Sixth Amendment gives anyone accused of a crime the right to a trial by an impartial jury. In attempts to protect the Sixth, judges sometimes curb the speech of lawyers, witnesses and the ability of journalists to get information. So, a free press sometimes finds itself pitted against efforts to provide a fair trial.

Shield law (state and federal)

A law that protects witnesses from revealing certain information, especially in court. Protects journalists from having to reveal confidential sources. 33 with written ones. No federal shield law protects journalists involved in federal proceedings. State laws vary widely. o Tennessee's shield law applies to any information or source used for publication or broadcast. o Most statutes do not protect journalists called to testify about events they witnessed, especially crimes. o Shield law crumbles when journalists are defendants, similar to a libel case. Ambiguity in Defining Journalist Freelance writers, book authors, internet writers, and even magazine writers are left out of many shield laws. Several state courts have excluded bloggers from state protection. However, Pennsylvania's shield law makes no distinction based on the form of publication and protects blog operators. In Washington, an appellate court applied the state's shield law to protect the identity of hackers who posted Kazakh government emails online that a newspaper used to write articles critical of the government. Reporter privilege can be waived, particularly when a reporter in on the verge of going to jail.

AP v. Walker, 1967

AP reported that Walker led a protest as the first black student at Mizzou, but he didn't actually lead it, just a part of it. AP had checked out its source. Deadline pressure, reporter did see Walker at protest → mistake happened. Not actual malice or even negligence. Had to prove actual malice because he was a public figure. AP won. Edwin Walker, a retired U.S. general, had been in charge of federal troops in the Little Rock, Arkansas, school desegregation confrontation in 1957. Ten years later, he became engaged in the debate over desegregation at the University of Mississippi, attracting significant publicity for his statements against federal intervention; he even had a "friends of Walker" following

Open records and open meetings (sunshine laws)

Access to Meetings All states and the District of Columbia have laws ensuring some degree of public access to government meetings. Several states outline provisions for enforcement of open-meetings laws. The laws and penalties for violating them vary widely. Open meetings laws trigger public access whenever a quorum of a decision-making body deliberates public business. The laws permit attendance but do not require public participation. Most state laws require agencies to provide public notice of meetings and to record minutes. Most state laws define a meeting as either a physical gathering or a videoconference that allows members to interact in real time. o exemptions § privacy § student records § campus crime § medical records § drivers information Access to Federal and State Records: see FOIA State open-records laws apply to state agencies and departments, cities, school districts, and other state authorities. Laws vary from state to state and from federal laws

Valentine v. Christensen, 1942

Advertising is not protected by the First Amendment Less important than political speech Advertisers less likely to be chilled Commercial speech easier to verify (Times v. Sullivan = a little protection)

What is an agency?

Any executive department, military department, Government Corporation, Government controlled corporation, or other establishment in the Executive brand of Government, including the Executive Office of the President, or any independent regulatory agency. Covered federal agencies, departments, commissions and government-controlled corporations include cabinet-level departments such as Defense, Homeland Security and Justice; regulatory agencies such as the Federal Communications Commission and the Securities and Exchange Commission; and NASA and the U.S. Postal Service.

Technological innovation and privacy

As technology has developed, privacy has declined. Timeline of Technology 1875 -- telephone (the sanctity of the home could be invaded, pierced for the first time) 1870s-80s - penny press, yellow journalism (intrusive, sensationalistic) 1885 - The Kodak camera, snapshot photography (no longer needed subject's permission) 1890 - Warren & Brandeis, "The Right to Privacy," Harvard Law Review So privacy as a practical right is only as old as 1890 or shortly thereafter. And socially networked everything really re-frames 'reasonable expectations of privacy' for everyone, even those who don't really use that stuff." New technologies include thermal imaging, GPS, and cell phones, facial recognition, ubiquitous CCTV surveiling, beacons. United States v. Jones: The warrantless use of a tracking device on Jones's vehicle to monitor its movements on public streets violated Jones' Fourth Amendment rights Riley v. California: The evidence admitted at trial from Riley's cell phone discovered through a search that violated his Fourth Amendment right to be free from unreasonable searches · May a private employer look at an email message on an employee's computer? Courts have said the First Amendment does not bar companies from doing so because the company's interest in preventing illegal activity or unprofessional comments outweighs an employee's privacy interest

"reasonable expectation of privacy"

Bathroom, bedroom, "reasonable" is not defined. An average person's expectation.

Curtis Publishing v. Butts, 1967

Butts (Athletic director of UGA) Curtis Pub. claims Butts conspired with AL football coach to fix a game How long do you have to gather info before published? Did they have a chance to rebut? Did accusation raise flags? (Butts was a Public Figure) Never happened = source not reliable but Sat. evening post magazine ran story Added Public Figures to actual malice

Cameras in courtrooms

Cameras in U.S. federal courts[HML1] : Supreme Court: No cameras. In Chandler v. Florida, the U.S. Supreme Court said the right of access to public trials does not include presumptive access for cameras. Circuit Courts: Civil trials at judges' discretion; barred from criminal proceedings by Federal Rule of Criminal Procedure 53 in criminal trial courts District Courts: Cameras (video coverage) in some proceedings in Second and Ninth Circuit trial courts Cameras in state courts: Allowed in some courtrooms some of the time. 20 states are extremely permissive, like Florida. In 9 states, judges may limit number and location of cameras, prohibit recording of jurors or vulnerable witnesses, or require pooled cameras. In 6 states, like Delaware and Illinois, courts are virtually closed to cameras. Newer tech: see page 20

Access to prisons

Can't make special privileges for media but everyone has a right to know. Rules have to be consistently reinforced: have to deny CNN access if they've denied Rome News Tribune access

Tips for reporters promising sources confidentiality

Clarity is key Off the record, background, deep background.

Compelling v. substantial interest

Compelling interest: Political speech, National security, and during war. Substantial interest: Protecting aesthetics of a community. Commercial Speech.

Consumer culture

Consumer Culture focuses on the spending of the customers money on material goods to attain a lifestyle in a capitalist economy. One country that has a large consumer culture is the United States of America.

Privacy as a negotiated right

Privacy is not absolute.

Richmond Newspapers v. Virginia

County judge cleared the courtroom of all reporters and spectators before the fourth trial of a man who was charged with killing a hotel manager Court said that there was a constitutional right to attend trials under the 1st Amendment The Court said criminal trials are presumptively open and the First Amendment prohibits closing them without a full exploration of alternatives Said criminal trials could only be closed under "extraordinary circumstances" "Absent an overriding interest (in closing the trial) articulated in the (judge's) findings, the trial of a criminal case must be open to the public." 1st Amend. Established "A right to know" Open meetings because of sunshine law/open meeting law Due process and freedom of press

Times v. U.S.

Daniel Elsburg took hidden secret story about Vietnam War Before this time, US believed and trusted the government - not anymore He believed the people deserved to know Papers had the right to publish because they did nothing illegal to obtain it

Dendrite Int'l v. Doe (2001) and the Dendrite test

Dendrite, a purveyor of computer software used in pharmaceutical industry, brought a John Doe lawsuit against individuals who had anonymously posted criticism of the company on a Yahoo message board. The courts denied them. This case created a set of guidelines for determining the circumstances under which an anonymous online speaker may be unmasked. Dendrite Test: test to determine whether or not the plaintiff can know the identity of an anonymous internet poster. Plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opp. To respond The plaintiff must specifically identify the poster's allegedly actionable statement The complaint must set forth a prima facie [accepted as correct until proved otherwise] cause of action Plaintiff must support each element with evidence Must balance the defendant's FA right of anonymous free speech against the strength of the prima facie case presented.

Times v. Sullivan, 1964

Example of fault Sets precedent for commercial speech protections Montgomery, AL used seditious law to go after NY Times ad that criticized police offers for their treatment of civil rights activists They were factual mistakes Had mistakes but not all false Had to prove actual malice because public figure Sullivan lost, couldn't prove actual malice 1st Am. protection for commercial speech for the first time! Alabama's seditious libel law ruled incompatible with the FA

Privacy as a constitutional right (Fourth Amendment, Warren & Brandeis)

Fourth Amendment= right of people to be secure Fourteenth Amendment= "deprive a person of life, liberty, property" Griswold v. Connecticut The Court ruled that the Constitution did in fact protect the right of marital privacy against state restrictions on contraception. Roe v. Wade Women's right to choose falls under state privacy Search of a public employee's desk and filing cabinet does not violate Fourth Amendment rights. City of Ontario v. Quon: The government's warrantless acquisition of Carpenter's cell-site records violated his Fourth Amendment right against unreasonable searches and seizures.

FA

Freedom of speech Freedom of the press Freedom of peaceable assembly Freedom of religion and from religion Freedom to petition the government for redress of grievances

Prior restraints

Gag orders in court room. Not allowed.

Harris v. Cox Enterprises

Georgia Bureau of Investigation records of its investigation of GA State Patrol Sued by Cox, which owns ASC and WSB and won · the parent company of AJC and WSB successfully sued for access to Georgia Bureau of Investigation records of GBI's investigation of the Georgia State Patrol.

Additional statutes denying disclosure of infor., such as Homeland Sec. Act

Homeland Security - To prevent terrorist attacks within the United States, reduce the vulnerability of the United States to terrorism, and minimize damage and assist in recovery for terrorist attacks that occur in the United States. Privacy Act of 1974 - Requires gov. agencies to use the info. in their files that contain individual, personal info. only for the reason it was collected. If FOIA mandates disclosure, if the two are in opposition, FOIA prevails. FERPA - Protects privacy of student education records. HIPPA- protects health records

Branzburg v. Hayes (reporters priveldege)

In the U.S. Supreme Court case Branzburg v. Hayes, three reporters (for three different publications; three [HML1] different cases bundled together for the Branzburg decision) claimed that the First Amendment provided a reporter's privilege[HML2] The Supreme Court disagreed but some justices argued in favor of a limited privilege for reporters to refuse to reveal sources[HML3] . Narrow decision; the various opinions do not make clear how to determine privilege beyond grand juries. [HML3]The Court balanced the benefits of a reporter's privilege not to testify before a grand jury against the public interest in justice and favored the latter

Branzburg v. Hayes

In the absence of shield laws, the right of a fair trial preempts the reporter's right to protect sources. 5-4 decision "Without some protection for seeking out news, freedom of the press could be eviscerated" - Bryan White A reporter wrote a story which appeared in a louisville paper. He was called to testify before state grand juries which were investigating drug crimes. He refused. Loss but viewed as win for future cases. The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the 1st Amend. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court. Buffet is open metaphor. Newsman have no constitutional access to the scenes of crime or disaster when the general public is excluded. In the U.S. Supreme Court case Branzburg v. Hayes, three reporters (for three different publications; three different cases bundled together for the Branzburg decision) claimed that the First Amendment provided a reporter's privilege The Supreme Court disagreed but some justices argued in favor of a limited privilege for reporters to refuse to reveal sources[HML1] . Narrow decision; the various opinions do not make clear how to determine privilege beyond grand juries[

Press-Enterprise v. Riverside Superior Court test

Justices wrote a complicated test a judge must apply before closing a judicial proceeding or trial or limit access to court records: 1. The party seeking closure must advance an overriding interest that is likely to be harmed if the proceeding or document is left open. Identify the higher priority. 2. Whoever is seeking closure must demonstrate that there is "substantial probability" that this interest will be harmed if the proceeding or document is left open. Show how the higher priority is in jeopardy. 3. The trial court must consider reasonable alternatives. 4. If the judge determines closure is the only reasonable solution, closure must be narrowly tailored to restrict no more access than is absolutely necessary. Trial court must make adequate findings to support the closure. Justify your decision with evidence

Privacy Protection Act of 1980

Legislation passed in the United States that protects journalists and newsrooms from search by government officials. The act protects "work products" and "documentary materials." A subpoena must be ordered by the court to gain access to the information. Limited exceptions apply if all other remedies have been exhausted. Agents may seize information related to national security, child pornography, evidence that a journalist committed a crime, or documentary materials to prevent their destruction, or the death or other serious injury of individuals.

Judicial process: Free press v. fair trial

Openness in court proceedings can have these possible benefits: Improve the quality of testimony Induce unknown witnesses to come forward with relevant testimony Cause all trial participants to perform their duties more conscientiously Generally give the public an opportunity to observe the judicial system Judges should presume that court process should be open and require the party seeking closure to show convincingly: The probability that publicity would infringe on the right to a fair trial. The inadequacy of alternatives to closure. The effectiveness of closure. Presuming the Openness of Trials: NOT ABSOLUTE Supreme Court decisions establish a qualified First Amendment right of public access to judicial proceedings when[HML1] : The proceeding traditionally has been open to the public. Openness advances the proceeding's goals The experience and logic test holds that the closure of judicial proceedings should be a last resort used only when: Essential To avoid a substantial probability of harm To some overriding interest where no effective alternative exists

Dickinson v. US

There was no basis in fact for denying petitioner's (Jehovah's witness) claim to ministerial exemption under 6 (g) of the Universal Military Training and Service Act, and his conviction for refusing to submit to his local board's induction order is reversed. Can you disobey a gag order and get away with it? Dickinson v. U.S. (1972): No. You can win your appeal but still be held in contempt of court by disobeying the court order. Appealing is your recourse, not disobedience. At least this was the gospel until 1986-87 when the Providence Journal violated prior restraint and published an article on wiretaps. The Journal was found in contempt. Citation reversed by 1st Circuit because the gag order was transparently invalid.

Who is a person?

U.S. citizens, member of media, citizens of foreign countries, persons acting in behalf of organizations, public interest groups

• Appropriation

Using a person's name, picture, likeness, voice, or identity (computer generated images) for commercial or trade purposes without permission. Celebs & Public figures - The rest of us. Commercialization: The appropriation tort used to protect people who want privacy; prohibits using another person's name or likeness for commercial purposes without permission. o Protects an individual's dignity o Personal right; can't survive death The right of publicity: The appropriation tort protecting a celebrity's right to have his or her name, picture, likeness, voice and identity used for commercial or trade purposes only with permission o Protects an individual's money o Property right; can survive death Defenses o CONSENT o newsworthiness o public use (if the info is already in the public) o FA o transformative use test: A test to determine whether the First Amendment protects a work that uses a person's name, picture, likeness, voice, or identity for artistic purposes. Changing the original to give it new meaning or a different message justifies First Amendment protection Predominant use test: In a right of publicity lawsuit, a test to determine whether the defendant used the plaintiff's name or picture more for commercial purposes or protected expression

Privacy

We have no comprehensive privacy statute or constitutional premise.

Open records and open meetings- why and who?

Why? 1. So the public can evaluate the expenditure of public funds 2. So the public can evaluate the efficient and proper functioning of its institutions. 3. To "foster confidence in government" Who? Non-profits if 1/3 or more of their funds come from tax dollars. Private companies to the extent they do business on behalf of a public office/agency

1890 Harvard Law Review, "Right to Privacy", by Brandeis and Warren

Widely regarded as the first publication in the United States to advocate a right to privacy, articulating that right primarily as a "right to be let alone." Published in 1890, the article argued that human dignity required protecting individual privacy. Contended that common law should recognize privacy rights. First legal theory as to why courts should recognize a right to privacy.

Virginia State Board of Pharmacy v. Virginia Citizens, 1976

Wipes out Valentine as precedent The VA Citizens challenged a VA statute that declared it unprofessional conduct for licensed pharmacists to advertise their prescription drug prices. Court ruled the 1st Amend. Protects willing speakers and willing listeners equally. Harry Blackmon, "so long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions." Did not give commercial speech a blanket of 1st protection. Some categories still banned: False advertising Misleading ads Ads for illegal goods and services Time, place, manner restrictions and regulations are permitted if content-neutral and there is a substantial gov't interest in reg.

Sheppard v. Maxwell

example of 6th Amendment > 1st In Sheppard vs. Maxwell, the U.S. Supreme Court overturned the conviction of Dr. Sam Sheppard who was sentenced to life imprisonment for the death of his wife, because of an unfair trial Supreme Court concluded that intense and prejudicial press coverage prevented a fair trial. Media frenzy can disseminate prejudicial information, inflame the minds of jurors, and jeopardize trial fairness Sheppard claimed a 1 armed man came in his house and he wrestled with him, then Shepard's pregnant wife was killed Shep was a doctor = high profile case He denied all lie detector test so assumed guilty. Media accused him of not cooperating In courtroom no rules → reporters on front row handling evidence All first protection, no 5th Shep was accused in 1954, not arrested for a month 12 years later the Supreme court ruled his trial was not fair because of the impartial trial Judges must control their courtroom, including where everyone sits even media

Electronic Freedom of Information Act, 1996

extended FOIA to computer records Group email = a meeting Established priorities for agencies to use when petitioned for information: Top priority: Life/safety at risk Middle: Requested by news media for the public's interest Low: Everyone else Requires agencies to do the following: Create a FOIA section on their websites. Provide electronic reading rooms filled with online copies of frequently sought documents. Provide expedited access to records when a compelling safety or public interest need for rapid access is demonstrated

Renwick v. News & Observer (Raleigh) (1984)

i. Newspaper said the Dean denied 800 African Americans admission because of their race. ii. Dean sued with libel per se, but should have sued by libel per interpretation iii. How many others did he admit? Could make a difference. iv. Renwick might have won because the erroneous number of admitted people had no context

What is a record?

neither FOIA or legislative history defines "record" All tangible and fixed items that (A) document government actions and (B) may be reproduced. Files, papers, videos, photographs, etc. that already exist.

Macon Telegraph v. Board of Regents (UGA)

newspaper successfully sued for access to University of Georgia Athletic Assn. financial records, including coaches' salaries, outside income. So both cases are about open records, access to government records and information where there is a public interest and/or where public monies are being spent

Milkovich test

o Is the comment statement or opinion? Can you prove it true or false? (Is it fact?) o Does the defamatory comment focus on a subject of public interest? o Is there a factual basis for the comment? Is the opinion backed up with any evidence?

Government in Sunshine Act of 1976

● Federal meetings open law, state open meeting statute ● GA has most open because old state ● The act requires the 50 or so federal agencies, commissions and boards with some independent authority and with members appointed by the president to conduct their business in public. They must give public notice of their meetings and record decisions. Ten exemptions allow boards to close meetings or hold executive sessions to debate specific topics. Exemptions 1 through 9 are similar to those of the federal Freedom of Information Act detailed below.18 Exemption 10 applies to agency litigation or arbitration. A frequent reason for closure is that the board will discuss matters related to personnel, and closure protects the privacy of those involved.

Fault thresholds

● Malice (hate; reckless disregard for the truth) ○ carless and irresponsible journalism ○ reasonably prudent person would have investigated prior to publishing ● Negligence (neglected to practice good principles) ○ differs across news mediums ● Factors when considering the two 1. How long did they have before publishing? 2. Did they have a chance to rebut? Did it raise public concern?