ASU JMC 402, Mass Comm Law - Exam 3
Hanlon v. Berger (1999)
"... police violate the 4th amendment rights of homeowners when they allow members of the media to accompany them during the execution of a warrant in their home." Yes, these agents had a warrant but the warrant did not entitle them to be equipped with media gear. The raid violated the 4th amendment bc it was for purposes other than law enforcement - "entertainment purposes". SC remanded the case. The presence of the news media is what is causing the problem. Thats why the claim was able to be filed in the first place.
What was the Supreme Court ruling in Bartnicki v. Copper (2001)?
"A stranger's illegal conduct does not suffice to remove the first amendment shield from speech about a matter of public concern."
Richmond Newspapers v. Virginia (1980)
"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." "Not only are courtrooms are presumptively open, but open courtrooms is a core purpose of the First Amendment"
What is the Sixth Amendment?
"In all criminal prosecutions, the accused shall enjoy the rights to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..."
Lake v. City of Phoenix (AZ S. Ct. 2009)
"Metadata is part of the record, not separate from it.". Metadata associated with electronic records is subject to disclosure in public records requests "If a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under Arizona's public records laws."
Cohen v. Cowles Media Co. (1991)
* Supreme Court upheld the constitutionality of Minnesota state law permitting persons who are injured because of a broken promise to be able to recover damages * Dan Cohen, a public relations consultant and spokesperson sued two newspapers after they identified him as the source of a story reporting that the candidate for the Democratic Farm Labor party have been convicted of shoplifting twelve years ago, after they had promised him confidentiality * The Cowles Media Company was found to have committed a breach of contract called promissory estoppel - Legal obligation to sources:
Food Lion v. Capital Cities/ABC (1999)
-Case didn't go beyond fourth circuit court of appeals -ABC has two reporters get jobs at Food Lion to expose systematic mishandling of meat via hidden camera. -After footage is broadcast, Food Lion sues for trespass, fraud, and breach of duty of loyalty -But why not libel? Because what ABC reported was true. Food Lion knew they couldn't win libel case. -Food Lion won at trial, awarded $5.5M in punitive damages -Judge reduced damages to $315k -Circuit court of appeals reduced damages to $2 for trespass and breach of security. All other damages thrown out.
What have lower courts tried to define a journalist as?
-Engaged in investigative reporting -Those engaged in gathering news -Possesses the intent at the beginning of the news-gathering process to disseminate this news to the public
FERPA (Family Educational Rights and Privacy Act)
-Forbids federally-funded institutions of education from releasing educational records of students unless they, (as adults,) or their parents provide consent -State supported schools are also forbidden from releasing grades or information related to a student's health
Josh Wolf Case
-Freelance video blogger -Recorded a protest on the streets of SF and posted excerpts on the Internet -Authorities saw this and wanted to know more and wanted the unposted video -He was subpoenaed and ordered to turn over the un-posted portions of his video -Refused to comply with the subpoena and was held in contempt of court -Jailed on and off Aug, 2006-April 2007 -Reached an agreement with prosecutors, answered questions and post all video on his blog -Seen as a face saving device, wasn't really handing them over but posting them on his blog on his own terms-
James Risen Case
-NYT reporter who wrote a book called State of War that published information that NYT would not allow to get published in their paper -Subpoenaed to testify at the trial an ex-CIA agent charged with leaking classified information -Risen refused to answer questions, he got charged with contempt of court -A three-judge panel of the 4th Circuit Court of Appeals ruled 2-1 in July that prosecutors can require Risen to divulge the name of his source -Dept. of Justice dropped prosecution of Risen without explicitly saying why they dropped the case
What is included in the list of categories that if a requested record falls into that category, that department can deny the FOIA request entirely?
-National security -International agency rules "housekeeping" materials -Statutory Exemption -Trade secrets -Agency memoranda -Personal privacy -Law enforcement records -Financial records -Geological data
What was the impact of Cohen v. Cowles Media Co. (1991)?
-Ruling enhanced freedom of the press. -Promise of confidentiality must be kept -Increases the free flow of information, story can now be published with a confidential source -Do their best to offer anonymity if the source needs it
Judith Miller Case
-She refused to disclose a source she characterized as confidential -Did not write an article using information from that source, but a special prosecutor learned that she had doing reporting and had a confidential source and wanted to know who it was -Miller refused, found in contempt of court by a federal judge -She was jailed for 85 days until agreeing to testify, after source released her from any obligation, but the source came forward
What is the Privacy Act of 1974?
-concerns material stored in a system of records by the federal executive branch ― limits amount of patient info that federal agencies collect or maintain ― several reasons in the Act why government may collect or maintain (e.g. info for a necessary and lawful purpose with adequate safeguards in place to prevent misuse of information) -Checks misuse of personal information obtained by the federal government -Provides individuals with access to records about themselves
All states now allow cameras in courtrooms in at least some circumstances. What are the exceptions?
1. Criminal v Civil trial circumstances 2. Are juveniles involved
What are the potential options for a Journalist's protection of confidential sources in a federal court?
1. Qualified reporter's privilege, but NEVER in grand jury situations
What are the potential options for a Journalist's protection of confidential sources in a state court?
1. Shield law (but if none, then...) 2. State Constitution, either explicitly stated or a court-recognized implication (but if none, then...) 3.Qualified reporter's privilege** (but not in most grand jury situations, with Pennsylvania being the exception.
Name the Traditional Judicial Remedies from the Supreme Court
1. Voir Dire 2. Change of Venue 3. Change of Venire 4. Continuance 5. Admonition 6. Sequestration
How many states are "all party consent"?
12 states
What are the exceptions to cameras being allowed in federal courts?
2nd and 9th Circuit Courts of Appeal were allowed to record some oral arguments -Video at discretion of the court of whether or not to share it Digital Video Pilot Project -Allows for some civil trials to be recorded But at the discretion of each case's judge and parties
How many states are "one party consent"?
37 states including Arizona and D.C.
How many states have some type of shield law?
38 states and D.C.
Zurcher v. Stanford Daily (1978)
A Supreme Court decision holding that a proper search warrant could be applied to a newspaper as well as to anyone else without necessarily violating the First Amendment rights to freedom of the press. This case/ruling caused a a spike in search warrants in newsrooms across the country.
What is a search warrant?
A court order that allows law enforcement to enter a place (home) to search through that premises. The occupant of the place does need to allow law enforcement in. Other than that you are not obligated to do anything, but they can search anywhere.
What is the Electronic Communications Privacy Act (ECPA)?
A federal law about wiretapping laws (telephone recording) that says a third party person not involved in a conversation CANNOT electronically taps into the conversation somehow. It is forbidden by federal law.
HIPAA (Health Insurance Portability and Accountability Act)
A law designed to provide privacy standards to protect patients' medical records and other health information provided to health plans, doctors, hospitals and other health care providers.
What is a sunshine law?
A law requiring certain proceedings of government agencies to be open or available to the public.
What is voir dire?
A preliminary examination of a witness or a juror by a judge or counsel. Screening process, asks jurors questions, find unbiased people
What is Promissory Estoppel?
A promise has been made, it was broken, harm came to someone bc of the broken promise, and that person can through the law can attempt to remedy the situation -General applicability: where in spite of the First Amendment and its constitutional protections, even if you are a journalist, you still have to follow many laws.
What is the Branzburg Reporter's Privilege Test?
A reporter's privilege is lost if: -There's probable cause to believe that the journalist has the information being sought -There's no other way to obtain the information being sought - one less destructive of First Amendment rights -There is a compelling and overriding interest in the information, it is important and relevant to the case
What is the Nebraska Press Association Test?
A restrictive (gag) order is constitutional only if: -It's certain there will be intense and pervasive publicity about the case. -No alternative measure(s) might mitigate the effects of pre-trial publicity -If a gag order will be issued, it will in fact, effectively prevent prejudicial material from reaching potential jurors -The order is narrowly tailored, it can't be gagging entire press for entire proceeding, has to pinpoint what the gag order will be used on
How long does an agency have to respond to a FOIA request?
Agencies have 20 work days to respond.
What does the Federal Communications Commission (FCC) say about interstate phone calls?
All party consent should be required for interstate phone calls. Especially from a one party to all party state FCC says federal law is meant to help law enforcement; FCC regulation applies to the public
What is a ride-along?
An arrangement for a civilian to spend a shift in the passenger seat of an emergency vehicle, observing the work day of a police officer, firefighter, or paramedic.
What is a subpoena?
An order to appear in court (or other judicial proceeding) to testify. -Compels production of information or materials relevant to a judicial proceeding
What is a '"covert recording"?
At least one person in a conversation is unaware that a recording is happening
Branzburg v. Hayes (1972) - Supreme Court Ruling
Branzburg refused to give his sources to the authorities. The Supreme Court said that journalists could not invoke reporter's privilege when they are subpoenaed by a grand jury, as there is no reporter's privilege in those situations. -Grand juries are entitled to "every man's evidence." Journalists are not exempted from that.
Do federal courts allow cameras?
Cameras not allowed in most circumstances.
Nebraska Press Assn. v. Stuart (1976)
Case involved murder of 6 members of a family by Edwin Charles Simants, an unemployed handyman with an I.Q. of 75 Issue about whether Simants had the mental capacity to understand his rights Judge ordered the media not to report any of the testimony at Simants's preliminary hearing Media appealed this ruling and the Supreme Court ruled that this order was a violation of the First Amendment Case effectively eliminated gag orders against the media in most cases unless there are "extraordinary circumstances" Gag order violated the First Amendment
What federal government agencies are exempt from FOIA?
Congress, the courts, the District of Columbia government, and courts martial or the military during wartime
Globe Newspaper Co. v. Superior Court (1982)
Court confirms Richmond Newspapers was not a fluke. Case involved juvenile victims. Judge made a decision to close the courtroom to the press to protect the juvenile identities Globe sued, saying that the entire trial should not be closed USSC said mandatory closing of entire trial was too sweeping. Court's order was not narrow enough
Press-Enterprise Co. v. Superior Court I (1984)
Court wanted to close the voir dire process Openness of voir dire upheld, should've been opened
What is Criminal Contempt of Court?
Directly interfering with or disobeying a court's authority, or disrespecting the court -The offense is against the court -Penalty: fine or time in jail (jail sentence)
What is included in "documentary materials" in the Privacy Protection Act?
Documentary materials include tapes, computer disks, digital material. They are accessible if: ---- -Reason to believe that materials would be altered or destroyed if notice was given -Materials were not produced in responses to a subpoena, all other remedies were exhausted, and there is reason to believe that further delay would threaten justice
What is metadata?
Embedded data in a file. It provides information about a certain item's content, including means of creation, purpose of the data, time and date of creation, creator or author of data, where the data was created.
What is the Freedom of Information Act (FOIA)?
Established in 1967, FOIA provides the public the right to request access to records from any federal agency. It enhances our ability to collect information.
How are FOIA exemptions supposed to be treated by agencies that receive FOIA requests?
Even if a record contains exempted information, that record must be provided, but with the exempted material deleted. "Permissive" rather than "Mandatory" Discretionary Just bc a record or part of it falls under the exemption, doesn't mean the agency has to deny it The law doesnt say it has to be denied, it's up to that department or agency
What is an all-party consent state?
Everyone in a wire communication conversation needs to be aware of and give consent to the conversation being recorded for it to be legal.
What does the law say about interstate phone calls?
Federal law is one party consent
Which constitutional rights conflict with the First Amendment when it comes to "ride-a-longs"?
From a journalism perspective, the Fourth Amendment which prohibits unreasonable searches and seizures. The presence of an unauthorized person, their mere presence makes the presence of the police unreasonable. Makes the search unreasonable. Unconstitutional
What is a challenge for cause?
If questioning indicates that a particular person probably would not be capable of making an impartial decision an attorney makes a challenge for cause that dismisses the prospective juror from duty "I don't like this potential juror and shouldn't be considered any further"
What is unique about Pennsylvania's shield law?
It provides absolute protection, even in grand jury situations.
What is the Arizona Media Subpoena Law?
It requires that a subpoena to any newsgatherer induce an affidavit (sworn statement) that states: -Every item being sought -All other available sources besides a newsgatherer have been tried -The identity of those other sources -Why the information sought is relevant to the case -The information sought is not protected by any lawful privilege -That the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and dissemination of news to the public as protected by the First Amendment
To whom do any newsgathering privileges pertain?
Journalists have no more or less access than do other members of the public Newsgathering access to public places can be denied by law enforcement
What is sequestration in a court?
Jurors get isolated, can't go home every night. Media consumption is controlled.
Which were the two most recent states to pass shield laws?
Kansas and Wisconsin
Wilson v. Layne (1999)
Law enforcement entered the home of Charles and Geraldine Wilson at 6:45 a.m. to arrest their son, but he wasn't home A Washington Post reporter and photographer accompanied the cops and observed a scuffle between Mr. Wilson and the cops as he came out of his bedroom in his underwear to see why the cops were in his house No photographs of the incident were published, but Wilson sued for intrusion of privacy alleging the media should not have been there Court ruled that law enforcement officers are violating the 4th amendment in most cases when they allow media to accompany them on private property to conduct a search or make an arrest
What is the Privacy Protection Act (1980)?
Legislation passed in response to Zurcher v. Stanford Daily 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.
What was the first state to pass a shield law?
Maryland (1896)
Are cameras allowed in the Supreme Court?
NO Forbidden Lack of context, argument from justices says that because oral ARGUMENT FOR MOST CASES IS ONE HOUR IS SO OUT OF CONTEXT, THAT THEY ARE CONCERNED THAT THE PUBLIC WOULD GET THE WRONG IMPRESSION ON HOW JUSTICE IS BEING CARRIED OUT "Over my dead body" Audio is recorded of all the oral exams and are available at the end of every week
Who is an impartial juror?
NOT necessarily someone who is ignorant (knows nothing) of the case It is someone who has no fixed opinion about the case, more specifically whether the defendant is guilty or not guilty
What directory information can schools under FERPA release?
Name, address, and attendance record, cell number, date and place of birth, major field of study etc.
What are the criticisms of a "federal shield law" (Free Flow of Information Act (2013))?
National security exemptions will render the law meaningless, if there was an issue in which a journalist was claiming reporter's privilege and it was determined that national security was at stake, then all bets were off. -There would be no reporter's privilege, no legislative protections. Critics said that would render the law useless
What is the definition of a journalist?
No uniformly accepted definition. When you define what something is, then by definition you are also defining what it isn't
What is a peremptory challenge?
Permit the attorney to have a prospective juror removed without giving any reason for doing so. Limited number. Cannot be done on basis of race. Trial courts need to oversee this.
Driver's Privacy Protection Act
Prohibits states from releasing information obtained from driver's license and vehicle registration records without permission -In 2000, the U.S. Supreme Court upheld the law against a constitutional challenge --Ruled that Congress' power over interstate commerce allowed it to adopt the statute
What is a shield law?
Protect journalists by allowing them to protect source identity and from having to reveal confidential sources. They help to uphold reporter's privilege. They vary from state to state.
What is a change of venire?
Rather than to move the trial to another location, you import the jury from somewhere else
In Veilleux v. National Broadcasting Co. (2000), the First Circuit Court of Appeals determined:
Reporters may be held responsible for misrepresentation if they fail to fulfill a promise not to use a specific source in a story.
Campus Security Act (Clery Act)
Requires universities to compile and publish information and statistics on campus crime each year Very general information, broad strokes
Chandler v. Florida (1981)
Ruled that cameras do not prevent a fair trial and that states may allow their presence in the courtroom. If a state allows cameras, their presence does not violate the constitutional guarantee of a fair trial. / If a state denies cameras, it is not a violation of the First Amendment. SC: televising a trial does not in and of itself cause prejudice to the defendant. Court felt a need to be more direct/explicit
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. SC: yes cameras should have been banned in this particular case Lower courts over-reacted to this, thought SC meant that cameras should not be in the courtroom at all Legislators thought it wasnt good either
What is an impartial juror supposed to be able to do?
Someone who can: Give full and unbiased consideration to the evidence presented in court Render a verdict based solely on the evidence presented in court Put aside anything they heard beforehand (News coverage done prior to the trial beginning could place bias into jurors)
T/F: A journalist receiving a subpoena doesn't mean they are in legal trouble; the trouble begins with the journalist refuses to cooperate with law.
TRUE
T/F: FOIA can only be used for records that are held by the federal government.
TRUE
T/F: Shield laws protect reporters by allowing them to protect source identity.
TRUE
Sheppard v. Maxwell (1966)
The Supreme Court overturned a murder conviction based on unfair pretrial publicity/overwhelming amount of media in the courtroom and ordered a new trial
What does a "response" mean in terms of FOIA?
The agency has 20 days to respond, not a grant of a definitive answer of "yes or no" in receiving said document.
What is Reporter's Privilege?
The claim is that there is a special relationship between reporter and source, it is a privilege relationship that the law should not be able to touch. -The idea that journalists have a limited First Amendment right not to be forced to reveal information or confidential news sources in court.
What is Civil Contempt of Court?
The failure to do something that the court has ordered for the benefit of another party -The offense is against another party -Penalty: fine $$$
Who does the law apply to?
The law applies to both citizens and to those who govern. No one is above the law. The law is supreme, not individuals.
What is a change of venue?
The movement of a trial or lawsuit from one jurisdiction to another or from one location to another within the same jurisdiction. A change of venue may be made in a criminal case to ensure that the defendant receives a fair trial. You are getting away from the location of where the crime happened And getting away from where the most intense media coverage happened Pool of jurors may have been less exposed than those in the original question Federal level: it can be moved to any other federal court in the country
Press-Enterprise Co. v. Superior Court II (1986) and the Court Closure Proceedings Test
The news media excluded from a preliminary hearing USSC said Proceedings can be closed IF: There is an overriding interest that would be harmed if the court was open during some part of the proceeding There is a substantial probability that that interest would be harmed AND there aren't reasonable alternatives to closure THEN... The order has to be narrowly tailored Only close what is absolutely necessary in order to deal with the overriding interest Trial court must made adequate findings to support
What is the status of the federal shield law?
There is NO federal shield law. -Closest they got was in 2013 when a U.S. senate committee voted on the Free Flow of Information Act (2013). It never got to a full house senate vote.
What is an "unconcealed recording"?
This is a face-to-face situation where it would be determined that any reasonable person that they would know they were being recorded (ex. reporter)
What is a one party consent state?
To record a conversation in a one party consent state, only one person needs to be aware that the recording is happening for it to be legal.
What is admonition in a court?
Trial judge supposed to recite to the jury whenever they are supposed to break in the trial, obligation of the judge. Reminds the jurors they are not to discuss what happened in the court room
What state has no law that doesn't cover recording consent, whether it be one or all party?
Vermont
Which constitutional right conflicts with the First Amendment when it comes to fair trial?
We in journalism refer it to free press/fair trail In law school: fair trial/free press First Amendment: Free press Vs. Sixth Amendment: right to fair/speedy trial, impartial jury
What does a FOIA REQUEST really mean?
When you file a FOIA request for records, they are not owed to you. Requests get evaluated. If the record(s) you are asking for fall into any of the exemptions, it gives them by law the right to deny your request at least in part.
What is included in "work products" in the Privacy Protection Act?
Work products include notes and drafts. They are accessible if: Probable cause to believe seizure will prevent death or harm
What is expected of you when you receive a subpoena?
You are expected to show up to the court and answer the questions in your testimony
What happens if you refuse to answer questions in court during your subpoena?
You are in Contempt of Court.
