Comm Law Test 4

Even when judges reject First Amendment and common law privilege claims, journalists may assert the Fifth Amendment privilege against self-incrimination if they are able to....

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Search Warrants: Officials can lawfully seek evidence in criminal cases from journalists by subpoenaing info or by executing a search warrant. Journalists opposed both. Why do...

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Courts recognizing a First Amendment-based journalist's privilege have limited the privilege to the traditional news media. True or False?

False

The First Amendment explicitly says that journalists have a constitutional right to withhold the names of confidential sources. True or False?

False

The Supreme Court has recognized in the First Amendment an "implied" right for journalists to withhold the names of confidential sources. True or False?

False

By 2014, only 12 states have enacted statutes allowing journalists to withhold the names of confidential sources. True or False?

False (38 states)!

Pornography

Sexually explicit material Pornography is a generic reference to sexually explicit material intended to cause sexual excitement. Pornography has no legal definition

Protection Under State Statutes - Exceptions

1. The information sought relates to a specific, probable violation of law 2. The information cannot be obtained through alternative means 3. There is compelling and overriding public interest requiring disclosure. Journalists are shielded from testifying if persons seeking the information cannot meet all three criteria.

Branzburg v. Hayes

A 5-4 majority of the U.S. Supreme Court rejected a privilege under the First Amendment for three reporters (Paul Branzburg, Earl Caldwell, and Paul Pappas) who had refused to testify before three different grand juries. The SC rejected a First Amendment-based privilege for journalists. However, the Branzburg Court emphasized that states were free to enact statutes protecting journalists. Thus far 38 states and the District of Columbia have granted a statutory testimonial privilege to journalists AKA shield laws. There is no federal journalist's privilege statute. Lower courts have relied on the peculiar configuration of concurring and dissenting opinions in Branzburg to create a limited First Amendment privilege for journalists.

Ex Parte

A Latin legal term meaning by, for, or from one party. This can refer to proceedings where one of the parties is not present.

United States v. Burke

A federal appeals affirmed the quashing of a subpoena served on Sports illustrated because a defendant in a college basketball point shaving scandal could not demonstrate that the information he sought was necessary to his defense. The U.S. Court of Appeals for the Second Circuit said that James Burke , who had been convicted, also had not shown he had tried to obtain the information from sources other than Sports Illustrated. When applied the court said Burke satisfied only one prong of the three part test.

Star Editorial Inc. v. United States District Court

A federal appeals court said the only way a Libel plaintiff could meet his burden of proof in a libel case was to know who had accused him of lewd and drunken conduct. The U.S. Court of appeals for the Ninth Circuit ordered the Star, a weekly super market tabloid, to disclose confidential informants used in preparing a story.

In Camera Review

A judge's review of documents or testimony in private or in the judge's chambers, without the public present.

Search Warrant

A order issued by a magistrate directing a law enforcement officer to search a place for unlawful property. More threatening to confidentiality than a subpoena. A search warrant allows no opportunity for a journalist to prepare a response and no opportunity for a court challenge. A search warrant authorizes law enforcement officers to make unannounced searches for journalists notes and photographs

COPA

After the Court ruled the CDA unconstitutional, congress attempted to protect children on the Internet with a narrower law. In 1998, congress enacted the Child Online Protection Act (COPA) prohibiting commercial material "harmful to minors" on the World Wide Web. The overbroad CDA had prohibited noncommercial as well as commercial materials on the whole Internet. COPA was the subject of a 10 year battle that culminated in a ruling of unconstitutionality. The Third Circuit affirmed this ruling in 2008; when the supreme court denied certiorari in 2009, the 10-year battle over COPA ended.

Price v. Time, Inc.

Alabama does not shield the authors of articles written for magazines. This limitation was an important aspect of libel lawsuit brought by former University of Alabama football coach Mike Price against Sports Illustrated. The centerpiece of a May 2003 Sports Illustrated article about Price was a description of a hotel room incident between Price and two women he had earlier met at a Pensacola, Florida, Strip club. The court of appeals for the eleventh circuit concluded that Sports Illustrated as a magazine was not covered by the Alabama shield law. However because a qualified first amendment privilege applied to the magazine, Price was required to depose four women who had knowledge of the confidential source's identity before the article's author would be compelled to reveal his source. Shortly after this ruling, Price and the magazine settled the suit.

Testimonial Privilege

All states provide testimonial privilege to certain communications. The most common of these privileges apply to attorney-client, physician-patient, and priest-penitent communications. Journalists also argue that the identity of their confidential sources should be protected from disclosure so the public may receive information about crime and corruption that might otherwise remain unpublished. In some cases where a court does not recognize a First Amendment-privilege, a journalist may nonetheless be protected under a state statute. In other settings, journalists will be protected by the First Amendment in the absence of a statutory privilege. Context is critical in defining a journalist's privilege.

Variable Obscenity

Allowing prohibition of sexual materials that are obscene to children but not to adults. The principle of variable obscenity for adults and children was established in 1968 in Ginsberg v. New York

Protection Under State Statutes

Although the Supreme Court in Branzburg said the First amendment does not protect reporters from being compelled to testify before grand juries, the Court did not say the Constitution prohibits legislative protection for confidential sources. By 2015, 38 states had shield laws.

United States v. Sterling

As part of its unprecedented crackdown on leaking, the Obama administration in late 2010 charged former CIA officer Jeffery Sterling with unauthorized disclosure to New York Times reporter James Risen of national defense information about a CIA program to disrupts Iran's development of nuclear weapons. A district court ruled that Risen had a First Amendment right to refuse to testify about his confidential sources. The Fourth circuit found that Branzburg "unequivocally" rejected a First Amendment-based privilege that treats reporters differently from all other citizens who are compelled to give evidence of criminal activity. The appellate court also refused to read Justice Powell's concurring opinion as a tacit endorsement of justice Stewart's dissenting opinion. As long as a subpoena is issued in good faith and is based on a legitimate need of law enforcement, Branzburg requires that a reporter testify like every other citizen. The appellate court found the subpoena was not issued in bad faith or for the purpose of harassment. Despite this ruling, Attorney General Holder decided in 2015 not to force Risen to testify at Sterling's trial .

Wilkinson v. Jones

Cable operators may transmit indecency. In a case emphasizing the similarity between cable operators and publishers, the Supreme Court upheld lower court rulings that indecency cannot be banned on cable. The court upheld lower court rulings striking down Utah statute barring indecency on cable. The federal district court said that cable could not be regulated like broadcasting because cable offered so many more channels. The court also said cable, unlike broadcasting, is invited into the home. Furthermore cable subscribers can control children's access to indecency by installing "lockboxes" provided by cable companies, the court said.

Zoning Laws

Communities attempt through zoning laws to control the impact of adult theaters and bookstore. Sometimes cities attempt to diffuse the impact of sex establishments by spreading them through different parts of the community or controlling the signs through which they present themselves to the public. Sometimes city zoning concentrates adult bookstores and theaters in one place for easier monitoring and law enforcement.

The V-Chip

Congress enacted the V-chip law requirement in 1996; today all television sets with a screen 13 inches or larger sold in the united states are equipped with a computer chip that allows set owners to block programming based on its rating.

The Protect Act

Congress responded to Free Speech Coalition by enacting the Protect Act of 2003, outlawing the promotion or advertising of child pornography. In 2008, the Supreme Court upheld the constitutionality of the Protect Act's prohibitions on illegal advertisement. The Protect Act punishes the advertising of child pornography, regardless of whether a defendant actually possesses child pornography. The protect act does not prohibit the advertising of lawful sexual materials, including virtual pornography that does not involve real children and is not obscene.

United States v. Extreme Associates

Court of Appeals for the Third Circuit held that federal laws proscribing the distribution of obscene materials do not violate the privacy rights of willing adults. Closely examining the Supreme Court's post - Stanley rulings about the distribution of obscenity, the court of appeals found the court had consistently recognized that the right to possess obscene material in the privacy of the home did not mean there was a correlative right to distribute that material.

Social Value

Finally, for a work to be obscene, it must not only be patently offensive and appeal to the prurient interests but also lack social value when viewed as a whole. The SC requires a social value test to determine whether materials are constitutionally protected. In the Miller decision, the Supreme Court said that to be obscene, sexual content taken as a whole must lack "serious literary, artistic, political, or scientific value". The value of sexual expression - unlike its offensiveness and its appeal to prurient interests - is not determined by the average person applying contemporary community standards.

Miller v. California - To determine whether a work is obscene, the court said, it is ?

First - necessary to establish that "the average person, applying contemporary community standards" would find that work taken as a whole, appeals to the prurient interest. Second - the materials must depict or describe sexual conduct in a "patently offensive" way that is specifically defined by state law. Third- the work, taken as a whole, must lack serious literary, artistic, political, or scientific value. The test is conjunctive; all 3 parts must be met if a work is to be ruled obscene and therefore outside of constitutional protection.

Osborne v. Ohio

Further limited the right recognized in Stanley. Upholding the constitutionality of prohibitions on the possession of child pornography. In Osborne, the court upheld an Ohio statute that prohibited the possession or viewing of materials showing nude minors.

Alexander v. United States

However, the Supreme Court has ruled that the First Amendment allows the government to seize a defendant's entire business, including constitutionally protected books and films, after a racketeering conviction (RICO). The court said the government did not violate the First Amendment when it seized 13 bookstores and video stores and nearly $9 million from Ferris Jacob Alexander after he was convicted of racketeering by transporting and selling obscenity. A five justice majority rejected Alexander's argument that seizing his entertainment business constituted an unconstitutional prior restraint.

Ashcroft v. Free Speech Coalition

In 2002 the Supreme Court ruled that the harm-to-children rationale does not support prohibitions of computer-created virtual child pornography or performances involving young adults who look like minors. The law can punish the creation, sale, and distribution of child pornography, the court said in Ashcroft v. Free Speech Coalition, only if the materials involve real children, not simulations. In Free Speech Coalition, the court struck down a section of the child pornography prevention act, a law making it illegal to produce, distribute, or receive any visual depiction that "appears to be" of a minor engaging in sexual conduct.

Lawrence v. Texas

In 2003 the Supreme Court struck down a Texas homosexual sodomy law, holding that a person's decision about the intimate relationships he will have in the home are not to be criminalized because society finds such relationships to be immoral. The Court believed decisions about intimate relationships lie within a zone of personal liberty, which the government may not enter.

Ginsberg v. New York

In Ginsberg, the Supreme Court upheld the conviction of Sam Ginsberg for selling minors "girlie" magazines that had been found not to be obscene for adults. The magazine showed female buttocks and breasts without full opaque covering as required by a New York statute prohibiting distribution of materials harmful to minors under age 17. Instead of applying the average-person standard in Ginsberg, the court, in an opinion written by Justice Brennan, held that a state might bar materials as obscene if they appeal to the prurient interests of minors, provided the materials also meet the other criteria of obscenity - patent offensiveness to minors and lack of serious social value to minors. Serious literature and objects of art that contain only nudity or sexual information are not obscene to children any more than they are to adults. The court in Ginsberg did not demand scientific proof that pornography leads to antisocial conduct among children. Instead, the court deferred to the determination of the New York Legislature that materials could be obscene to minors even if they were not to adults. The Court required only that the law defining what is obscene to minors have a "rational relation to the objective of safeguarding... minors from harm"

Downing v. Monitor Publishing Co.

In New Hampshire, for example, the sate supreme court not only affirmed a lower ruling to compel disclosure of a newspaper's sources, but also said the lower court could punish the paper's refusal to reveal the source by assuming that the source did not exist. Former police chief Clayton Downing of Boscawen sought the names of sources who had told the concord monitor that he had failed a lie detector test. The New Hampshire supreme court relied heavily on Herbert when it said that there is no absolute privilege that allows the press to refuse to reveal sources of information "essential" to a libel plaintiff's case.

Zerilli v. Smith

In contrast to the Baker case, the courts addressing Wen Ho Lee's efforts to force journalists to reveal their confidential sources all found that a qualified First Amendment privilege in civil cases had been overcome. The prevailing precedent in the District of Columbia Circuit requires that civil litigants seeking information from a nonparty journalist must meet two requirements; they must show that the information sought goes to the "heart of the matter" and that they have exhausted all reasonable alternative sources of the information.

Community Standard

Jurors can draw on their own understanding of the views of the average person in the community to decide what is patently offensive and prurient. The "community" reflecting the average person's value may be the juror's city, county, or state. The community standard may be interpreted by a public opinion poll.

Ginzburg v. United States

In one of the most controversial cases in obscenity law, the Supreme Court held that in "close cases" evidence of "commercial exploitation of erotica solely for the sake of their prurient appeal" may be decisive in determination of obscenity. The Supreme Court upheld the obscenity conviction of publisher Ralph Ginzburg in part because of his aggressive marketing of sexual material. Justice Brennan said that Ginzburg's advertising emphasized the eroticism of his publications, not their literary value.

Violent Pornography - Video Games

In response to the belief that these games harm children, a number of cities and states enacted laws limiting or prohibiting children's access to violent and sexually explicit games; each law has been found to be unconstitutional.

Safe Harbor

In the context of broadcast regulations, the time period from 10pm to 6 am when radio and television stations may air indecent material without incurring Federal Communications Commission sanctions. All three branches of government have struggled to find a time for broadcast indecency that shields children from offensive programming but allows adults access to constitutionally protected speech.

Indecency

Indecent material is sexually oriented but does not meet the miller definition of obscenity. Indecency, much like obscenity, depicts or describes sexual or excretory activities or organs in a patently offensive manner. Indecency, in contrast to obscenity, need not arouse a prurient interest in sex. In addition, an indecent broadcast program, unlike one that is obscene, can have serious value and still violate the law. The FCC has said that the "serious merit" of a program will be considered as a factor, but not necessarily the deciding factor, in determining whether a broadcast is indecent. Indecency receives some First amendment protection, which varies from medium to medium. Courts analyze indecent regulations according to the technological attributes of a medium and the level of effort required of the reader or viewer to receive messages. For example, the Supreme Court regards the internet as similar to the highly protected print media because both require affirmative effort by the recipient to receive a message. In contrast, broadcast indecency is restricted because broadcasting is "uniquely accessible to children" even those who are too young to read.

The Average Person

Is the normal adult, not a highly sensitive prudish person. Nor is the average person someone with strange or perverted tastes.

Stewart's Branzburg Dissent: The seminal case in the debate over a journalist's privilege is Branzburg v. Hayes decided in 1972. While the majority of the Court ruled that journalists must testify before grand juries, Justice Stewart's dissenting opinion has had considerable influence on later law. Briefly explain Stewart's opinion and its impact.

Justice Stewart argued that journalists should have a qualified First Amendment privilege to withhold confidential info. He argued journalists should be excused from testifying before a grand jury unless the government could establish a "compelling need" for relevant info that could be acquired from no other source. Stewart's argument for a qualified First Amendment privilege for journalists has been adopted in various formulations by several federal and state courts and by state legislatures.

PEG Channels

Local governments may require cable systems to provide public, educational, and government (PEG) channels as a payment to the community for being allowed to lay cables under city streets and to use city rights of way. PEG channels are used for the cablecast of city council and school board meetings, educational panels, and public announcements. Public access channels typically are operated cooperatively by local community and government organizations, often including an access channel manager appointed by the municipality.

Lower Court Denial of Privilege

Lower courts have since contended that journalists deserve First Amendment protection against testifying only if they can establish that grand jury requests for testimony are conducted in bad faith or constitute harassment. Reporters who are unable to meet this burden of proof are uniformly required to testify about the selling of drugs, the possession of weapons, or assaults. Courts also frequently require reporters to testify when they are asked about events they witnessed rather than about the names of the sources or information given to them by sources. In these cases the reporters themselves are in a sense their own sources.

Atypical Tastes

Material may be found obscene if it appeals to people with atypical sexual tastes, even when it does not appeal to average adults and minors.

Obscenity

Material that appeals to the prurient interest, is patently offensive, and is with out serious social value. Is legally defined as a narrow class of "hard-core" pornography that is so "offensive" and so lacking in "social value" that it is denied First Amendment protection. Obscene expression is unprotected in all media. Obscenity is the most graphic form of sexual expression and is banned in all media distributed in the United States. The SC regards obscenity as unworthy of constitutional protection because obscene depictions do not contribute to the exposition of ideas. Miller v. California.

People Protected

Most of the 38 states with shield laws allow protection for those connected to "newspapers, radio, and television" or the "news media". About a dozen states appear to protect anyone employed by the news media. Another dozen protect only persons involved in the news process, including editors and photographers. One state statute, Alaska's, applies only to "reporters" Most shield law exclude book authors, freelance bloggers and writers, academic researchers, and others not working directly in news organizations.

Holmes v. Winter

Most shield laws protect newspersons asked to testify before any administrative, judicial or legislative body. A few states statutes cover only civil proceedings or only criminal proceedings. Some do not allow a newsperson to refuse to testify in a libel suit. A provocative development in privilege law occurred in late 2013 when New York's highest court ruled that New York's absolute shield law protected Jana Winter from a Colorado subpoena seeking her sources in the James Holmes case discussed in Chapter 1. It did not matter, the New York court stated, whether Winter was in Colorado when she spoke with her confidential sources; New York - based journalists should not have to consult the law where a source is located before they promise confidentiality.

Privacy and Possession of Obscenity

Prohibitions on obscenity include bans on sale, importation, and interstate transport of obscene materials, including child pornography. The U.S. Court of Appeals for the eight circuit has ruled that ordering obscenity through the mail is also illegal. There is however, a limited right to possess obscene materials in the privacy of the home.

CIPA

Public libraries that accept federal funds may be required to limit access to sexually explicit Internet material, the Supreme Court ruled in 2003. By a 6-3 vote, the Court upheld a federal statute requiring that public libraries use filtering software or risk losing federal subsidies for internet access. SC upheld requirement that libraries receiving federal funds employ filtering software to block online porn in CIPA.

Ga Law 24-5-508

Qualified privilege for news gathering or dissemination Any person, company, or other entity engaged in the gathering and dissemination of news for the public through any newspaper, book, magazine, radio or television broadcast, or electronic means shall have a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any proceeding where the one asserting the privilege is not a party, unless it is shown that this privilege has been waived or that what is sought: (1) Is material and relevant; (2) Cannot be reasonably obtained by alternative means; and (3) Is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.

Publication Requirement

Slightly more than half of the 38 state shield laws appear to provide protection whether or not the subpoenaed information is published. About half a dozen statutes, including Alabama's, require publication in order for the statutory protection to be triggered. State statutes that require publication will not ordinarily protect information or pictures that reporters and editors leave out of newspapers and news broadcasts.

Information Protected

States are divided over whether to shield reporters from revealing notes and other information as well as sources. Some states protect reporters from testifying only when the journalists want to withhold the name of a source. Other states offer protection against disclosure of any information in the possession of a reporter or other media employee. Only a few state statutes specifically say that outtakes, film, and photographs are protected from forced disclosure.

Stewart Three-Part Test

Stewart agued journalists should have a First Amendment privilege to withhold source names and information unless officials satisfy "a heavy burden of justification" overcoming the privilege. Stewart said he would require the government to demonstrate there is: 1. A probable cause to believe that a reporter has information "clearly relevant" to a specific violation of law 2. Evidence that the information sought cannot be obtained by alternative means less destructive of first amendment values. 3. "a compelling and overriding interest in the information"

Denver Area Educational Telecommunications Consortium, inc. v. FCC

Struck down the segregation requirement because it unconstitutionally restricted sexual content of the cable system operators, programmers, and adult viewers.

Stanley v. Georgia

Supreme Court unanimously ruled that a First Amendment - based right of privacy protected a citizen who merely possessed sexual materials in the home. Stanley was convicted for possession of obscene films found while police were searching his residence for evidence of illegal bookmaking. Thurgood Marshall wrote - If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read and what film he may watch.

United States v. Reidel

The Court emphasized that the right to possess obscenity in the home did not also mean that someone had a right to distribute or receive obscenity.

Ashcroft v. American Civil Liberties Union (II)

The Court held that the government failed to prove that age verification techniques were more effective than software filters installed by parents. Justice Kennedy, writing for the majority in Ashcroft II noted that COPA was suspect because a blue ribbon commission created by congress concluded that filters were more effective than age verification techniques. Kennedy concluded that if congress promoted the use of filters, parents could control what their children see "without subjecting protected speech to severe penalties" Supreme Court rejects age verification on internet required by Congress in COPA Software filters better Lets parents control kids

United States v. Playboy Entertainment Group

The Court reaffirmed the rights of cable operators by striking down part of a statute designed to protect children from inadvertently being exposed to sexual video and audio. In a 5-4 ruling in which the Supreme Court applied strict scrutiny to the regulations, the Court held that the required scrambling, total blocks, and time shifting were unconstitutional content restraints because a less restrictive method was available to protect children from a signal bleed, a problem that the Court was not convinced was very serious in the first place.

Reporters Committee for Freedom of the Press v. AT&T

The DOJ guidelines also limit subpoenas for journalists' telephone and email records and generally require advance notice of a subpoena. These protections exists despite judicial ruling that the news media have no first Amendment right to be notified before telephone companies surrender journalists record to law enforcement officers. In this case several reporters, two newspaper companies, and Reporters Committee for Freedom of the Press tried to block government access to reporters' long distance billing information if the journalists were not told beforehand. The journalists sued AT&T after the company released toll-call records to government officials five times without informing the media. In reporters committee the court said the first amendment does not guarantee anyone, including journalists, the right to collect information immune from good faith investigations by the government. No one said the court is insulated from the inhibitions that result from knowing the government has the authority to investigate criminal activity.

Defining Broadcast Indecency

The FCC developed a broader contextual analysis that emphasizes three factors 1.The explicitness or graphic nature of the material 2.The extent to which there was repetition 3.Whether the material was presented to "pander" or "shock" The commission uses a national standard for determining whether a program is patently offensive, not a local community or statewide test. The FCC also considers the "full text" of the program.

FCC v. Fox Television Stations (Fox 1)

The FCC's new policy on "isolated expletives" was sustained in 2009 by the supreme court in a 5-4 ruling based on administrative rather than constitutional law. The majority concluded the FCC did not act arbitrarily in violation of the Administrative Procedure Act when it began punishing single utterances of **** and shit. "The Commission could reasonably conclude" Justice Scalia wrote for the majority "that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children."

First vs. Sixth: State the constitutional "conflict" embodied in Branzburg v. Hayes, and briefly outline how Justice Stewart proposed to reconcile the conflicting constitutional commands.

The First Amendment protects freedom of the press, which includes--many would argue--a right of journalists to promise confidentiality to sources. But the Sixth Amendment guarantees each citizen a fair trial, which includes the right of the accused to have a testimony compelled on their behalf. Stewart proposed a "qualified" privilege under which journalists would have to testify or provide notes if a grand jury demonstrated a compelling need for relevant information held by a journalist and there were no alternative sources.

Miami Herald Publishing Co. v. Morejon

The Florida Supreme Court held that the First Amendment did not protect a Herald reporter who refused to testify about events he had witnessed. The Florida court, relying on the majority in Branzburg, said that there is no privilege for reporters who are subpoenaed for their eyewitness observations of an event relevant to a court proceeding. The court refused to apply the Stewart three-part test because is said Achenbach was not relying on confidential source that might "dry up" if revealed.

Privacy Protection Act/USA Patriot Act

The Privacy Protection Act limits searches for work products and documentary material. The FBI's power to engage in electronic surveillance or to examine records, papers, and documents was expanded by the USA Patriot Act, enacted in response to the terrorists attacks of September 11, 2001

Indecency - Internet

The SC has ruled that the communicators using the internet, like print publishers, have a first amendment right to disseminate indecency. The Communications Decency Act (CDA) prohibited deliberately using the internet to send indecent, patently offensive, or obscene material to people under 18 years old. The CDA also made it illegal for any person or company - such as America Online - to allow dissemination of obscene or indecent material to minors over Internet facilities it controlled. The CDA was ruled unconstitutional

Freedman v. Maryland

The SC said theater owners and film distributors may not be compelled to prove their productions are not obscene. Rather, the government agency that would stop the expression must prove the materials are obscene. The SC has required these standards in cases where customs agents seized imported materials. In each of these cases, the court said the due process of prior restraint law requires that administrative decisions be made rapidly and that the administrator not have the final word on what is obscene. Only the courts, the SC said in Freedman, have the necessary sensitivity to freedom of expression to determine when prior restraints might be imposed. Adult films seldom enjoined Procedural due process: 1.Notice 2.Hearing 3.Burden on government 4.Rapid decision and federal review 5.Judicial obscenity

City of Renton v. Playtime Theatres, Inc

The SC upheld a Renton, Washington, zoning regulation that prohibited adult movie theaters within 1000 feet of any residential zone, family dwelling, church, park or school. The Court ruled the law was a constitutional time, place, manner regulation even though it singled out adult movie theaters and bookstores for regulation. The regulation was content neutral, the court said, because it was aimed at protecting the community from crime and declining trade and property values, not at the content of the films.

Pandering

The assertive marketing of sexual materials for their prurient interest. In determining whether sexual materials are obscene, the supreme court will consider the methods by which they are marketed. If the materials are aggressively marketed for their prurient appeal, they are more likely to be termed obscene. This is so offensive to the Supreme Court that the justices have upheld obscenity convictions for the commercial promotion of sexual materials when neither the promotion nor the materials advertised were clearly obscene.

Reno v. ACLU

The Supreme Court found the CDA unconstitutional, saying that the Internet should receive expansive First Amendment protection. The court stated that the internet is not as "invasive" as broadcasting. The court said because certain steps must be taken, it is unlikely that an Internet user would accidentally encounter indecent material. The court also distinguished the internet from broadcasting because there was no spectrum scarcity justifying government regulation. The internet did not have physical limitations similar to those of broadcasting. Applying strict scrutiny in the Reno decision, the court agreed the government had a compelling interest in protecting children from obscene and indecent material. But the Court said the CDA was unconstitutional because it was not narrowly drawn to restrict speech as little as possible.

Hamling v. United States

The Supreme Court held that advertising brochures including explicit photographs of heterosexual and homosexual intercourse, fellatio, cunnilingus, masturbation, and group sex were patently offensive. Mere nudity is not patently offensive Four letter words are not obscene Don't use the word obscenity to loosely

Jaffee v. Redmond

The Supreme Court held that confidential communications made to licensed psychotherapists were protected by federal common law privilege. In doing so, the court adopted a multipart test to guide lower courts in other cases in which a common-law privilege is asserted. The test asks whether the asserted privilege would serve significant private and public interests, whether these interests outweigh any evidentiary benefit resulting from rejection of the privilege, and whether the privilege has been widely recognized by the states.

Mishkin v. New York

The Supreme Court ruled that material with little appeal to an "average" person may nonetheless be obscene if the dominant theme of the work as a whole appeals to the prurient interests of the "clearly defined deviant sexual group" to which it is disseminated. In Mishkin, the court upheld the conviction of a man who produced and sold books dealing with sadomasochism and fetishism, such as "cult of the spankers".

United States v. American Library Association

The Supreme Court upheld CIPA, ruling that libraries may restrict patrons' access to internet material of "requisite and appropriate quality" just as librarians have traditionally decided which books to purchase. Writing for the Court, Chief Justice Rehnquist noted that most libraries already excluded pornography from their print collections because they deem it inappropriate. It would make little sense to treat libraries' judgment to block online pornography differently, when these judgments are made for just the same reason" Rehnquist said. The Majority of the court concluded that CIPA does not seriously burden library patrons' access to constitutionally protected internet content.

Baker v. F&F Investment

The U.S. Court of Appeals for the Second Circuit used a variation of the three-part test to uphold the right of a prominent magazine journalist to refuse to reveal his source. The court said litigants seeking the source of an article by journalist Alfred Balk had to establish the need for the information or that they could not find the information in other ways. He based the story, which documented discriminatory real estate practices in Chicago, on information supplied by an anonymous source The source told Balk how he scared whites living near African American neighborhoods into selling their homes to him at low prices. Then sold those houses to African American for substantial profits. In the case at hand, the second circuit did not mention the Stewart three-part test, but relied on similar criteria. The court said the identity of the source "did not go to the heart" of the case, a phrase often used when confidential sources are either not relevant or not necessary to a case. The second circuit also noted that according to the trial court judge no alternative to identifying Balk's source had been tried

Bantam Books, Inc. v. Sullivan

The U.S. Supreme Court ruled it was unconstitutional for a state commission to threaten magazine and book distributors with prosecution for materials that had not been determined obscene. The court ruled that the Rhode Island Commission to encourage morality in Youth imposed an unconstitutional prior restraint on magazine and book distributors when the commission sent them notices that some of their publications, including Playboy and Peyton Place, were objectionable for sale or display to youths under age 18.

United Sates v. Williams

The court ruled that offers to provide or receive child pornography are "categorically excluded from the First Amendment." Advertisers or solicitors of sexual materials can be punished as long as they believe they are offering illegal sexual materials or if they fraudulently offer legal materials they advertise as child pornography.

Zurcher v. Stanford Daily

The supreme court decided that the first amendment does not protect communicators from authorized searches for criminal evidence, even when they are not suspected of criminal activity. The impact of the decision has been blunted by state and federal statutes encouraging the use of subpoenas rather than search warrants in most circumstances.

FCC v. Fox Television Stations (Fox 2)

The supreme court in 2012 unanimously ruled that the FCC failed to give Fox and ABC fair notice that fleeting expletives and momentary nudity could be found indecent. Therefore, the FCC's standards as applied to these broadcasts were unconstitutionally vague in violation of the fifth amendment.

Sable communications v. FCC

The supreme court ruled that sexually explicit phone messages that are indecent but not obscene cannot be banned but can be regulated. The court said that because indecency, unlike obscenity, is constitutionally protected, congress invalidly banned indecent dial a porn instead of only restricting access by children. The court said that because indecent speech is constitutionally protected, as the court first held in FCC v. Pacifica Foundation, the regulation of indecent dial-a-porn must be limited so that access by children is restricted without barring access by adults. Shortly after the SC ruled in Sable that a blanket ban on indecent dial-a-porn is unconstitutional, Congress enacted more limited legislation. Congress adopted a statute prohibiting dial-a-porn services from providing indecent messages to persons younger than 18 years old and non-consenting adults. The law also requires telephone companies that bill for adults messages to block indecent dial-a-porn from the phones of customers who have not subscribed to the service in writing . The statute also allows dial-a-porn services to insulate themselves from prosecution by adhering to FCC procedures limiting children's access to explicit sexual messages.

Cohen v. Cowles Media Co.

The supreme court upheld the constitutionality of a Minnesota state law permitting persons who are injured because of a broken promise to recover damages. Subsequently, when the same case was remanded to the Minnesota supreme court, the court awarded $200,000 to Dan Cohen, who lost his public relations job after newspapers revealed his name in violation of a promise of confidentiality. The U.S. Supreme Court has said the First Amendment does not protect journalists who reveal the names of sources promised confidentiality. The court said that the state of Minnesota could enforce its doctrine of promissory estoppel, a common-law doctrine protecting people who rely on promises to their detriment.

Brown v. Entertainment Merchants Association

The supreme court's 2011 ruling striking down California's ban on the sale or rental of violent video games to minors. The court held that video games, like books, plays and movies, are protected form of communicating ideas. Legislatures may not create new categories of unprotected speech by balancing the value of speech against its social costs, the court ruled.

Pope v. Illinois

The value of sexual expression - unlike its offensiveness and its appeal to prurient interests - is not determined by the average person applying contemporary community standards. The Supreme Court ruled that the value question of the three-part Miller test should be decided by a "reasonable person" rather than by the "average person". The court's decision in Pope increases First Amendment protection for sexual materials; the reasonable person might find literary, artistic, political, or scientific value in a work where the average person, representing the majority, might not.

Protection under federal statutes and regulations - Summary

There is no shield law. However, several courts have recognized a privilege for reporters under federal rules of procedure adopted by congress for the federal courts. In addition, the DOJ and the SEC have adopted guidelines designed to limit the use of subpoenas served on journalists.

FCC v. Pacifica Foundation

This dispute began with an afternoon broadcast of George Carlin monologue, "Filthy Words", on New York City radio station WBAI (FM). A New York father complained to the FCC after hearing the Carlin satire on the use of language while driving with his son. Carlin begins his 12 minute monologue by saying he will talk about "the words you couldn't say on public, ah, airwaves, um, the ones you definitely wouldn't say, ever." Then he frequently repeats in a variety of contexts seven "dirty" words: shit, piss, ****, ****, ********er, mother****er, and tits. Justice Stewart, in a dissenting opinion joined by Brennan, White, and Marshall, said the FCC could not constitutionally regulate the "seven dirty words" because the Carlin monologue was not obscene. Stewart said when congress passed the law banning "any obscene, indecent, or profane language" from the airwaves, no legislator said that the word indecent meant anything different from the word obscene. The regulation of broadcast indecency, however, is not justified on spectrum scarcity grounds. The Supreme Court decision upholding the FCC's power to punish a broadcaster for airing indecent content, justifies broadcasting's reduced First Amendment protection in the context because broadcasting is intrusive and accessible to children. The Supreme Court ruled that the FCC could regulate the times of indecent broadcasts without violating the First Amendment.

Federal Common-Law Privilege

Three years after the Branzburg decision, Congress enacted the Federal Rules of Evidence, including Rule 501, Which provides the privilege of a witness "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

Prurient Interest

To be obscene, materials taken as a whole must appeal to the prurient interest as determined by "the average person, applying contemporary community standards." It is not enough that the materials elicit normal, healthy, or lustful thoughts. To be obscene, materials must appeal to a lascivious, shameful, or morbid interest in sex. Materials are not obscene simply because people may find them to be filthy, disgusting, or revolting; they also must have a sexual appeal.

Patent Offensiveness

To be obscene, sexual materials must be more than sexually stimulating or titillating. They must also be patently offensive depictions of sexual conduct specified by the legislature. Patently offensive materials feature an excess of repetitive sexual detail, often in a very commercial context. Patently offensive materials usually will include scenes of erection, penetration, or ejaculation; these materials also might emphasize homosexuality, bestiality, flagellation, sadomasochism, fellatio, or cunnilingus. Although textual material may be obscene, recent enforcement efforts focus on photographs and motion pictures.

New York v. Ferber

To protect young minds and bodies, the Supreme Court also has ruled a state may prohibit the distribution and possession of pictures and films in which children perform sexual acts. It is not necessary to determine whether such sexual materials are obscene, only that the children are exploited sexually, the Court said. Ferber was convicted for selling to an undercover police officer two films of young boys masturbating. The court said that "the exploitative use of children in the production of pornography has become a serious national problem."

A reporter's privilege is not recognized in military jurisprudence. True or False?

True

Although Justice Stewart dissented in Branzburg v. Hayes, his opinion has been widely incorporated into state shield laws. True or False?

True

Arkansas became one of the first states to specifically include web-based journalists when it amended its shield law in 2011. True or False?

True

Confidential sources promised confidentiality may sue for breach of contract if they are hurt by a journalist's disclosure of their identity. True or False?

True

Courts and legislatures sometimes require that journalists promise confidentiality to sources if journalists wish to claim a privilege to withhold the names of the sources. True or False?

True

Journalists fear the public may be denied valuable reports because sources may "dry up" if journalists cannot promise confidentiality. True or False?

True

Journalists sometimes lose a statutory privilege to withhold confidential sources if the journalists observe--are witnesses to--criminal activity. True or False?

True

Since 9/11, the number of subpoenas requiring journalists to reveal sources has increased. True or False?

True

State courts increasingly are grappling with the issue of whether those who post information on websites are "sources" covered by state shield laws. True or False?

True

The Supreme Court has never recognized a First Amendment right for journalists to withhold the names of confidential sources. True or False?

True

California's shield law protects journalists whose work is published on websites. True or False?

True (strongest shield law)

Miller v. California

Under Chief Justice Burger, the SC settled on a definition, announced in 1973. The The Miller test remains and the case provides the foundation of discussing obscenity. CA convicted Miller under state law for conducting a mass-mailing campaign to advertise four books - Intercourse, Man-Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography - and a film entitled Marital Intercourse. The advertising brochures contained depictions of men and women, their genitals prominently displayed, engaged in a variety of sexual activities. The Supreme Court, applying the 3-part test now known as the Miller test, found the material to be obscene.

Leased Access

Under the 1984 Cable Act, congress requires larger cable systems to designate 10-15 percent of their channels for use by others on commercial or "leased" basis. Smaller cable systems are not required to lease channels.

Josh Wolf

Video blogger Josh Wolf is also arguably covered by the California shield law in state cases. However, in April 2006, a federal judge ruled that California privilege law was irrelevant in federal proceedings. A federal grand jury subpoenaed Wolf, seeking video he shot in 2005 of San Francisco protest march in which a policeman was injured. CA has tough shield laws Brought in federal jury so he had to comply

Paris Adult Theatre 1 v. Slaton

Whatever tenuous right Stanley had to possess obscenity in his home, the supreme court has ruled the right does not extend to areas outside the home, such as public theaters. The court ruled that a downtown Atlanta theater could be barred from showing two obscene films to willing adults. Signs outside the theater announced that the movies were "mature feature films" for adults 21 and older. "if viewing the nude body offends you," one sign said, "please Do not enter". There was no evidence that minors had entered the theater. Even if the audience contains only consenting adults...states can still regulate The Supreme Court rejected the theater management's argument that adults should have as much right to attend an explicit movie in a theater as Stanley had to possess obscene materials in his home. A public theater, unlike a home, is not a private place, the Court said. The state can regulate a theater as it can regulate any other business. It was immaterial, the court said, that the management of the public theater limited the audience to consenting adults. Even if the audience contains only consenting adults...states can still regulate

Rowan v. United States Post Office Department

Where as zoning may channel non-obscene communications to certain places, postal regulations protect one's privacy from the assault of unwanted sexual material. In this case, the SC unanimously agreed no one has a right to press even good ideas on an unwilling recipient. Thus, mailers right to communicate stops at the mailbox of the unreceptive addressee.