SMAD 370 Exam 4

Exemption: Statutory

"Catch-All" *Mandatory Exemption* applies to documents that Congress declared in other statutes to be confidential

Reporter's Options to Illegal Closed Meetings

(1) You may file suit to prevent a closed meeting in federal district court (stop a meeting that has *not occurred yet*) (2) You may file suit to stop *future* closed meetings (3) Sure for a copy of the *transcript* of the closed meeting if suit is filed within 60 days of closed meeting (4) May sue agency, but not the individuals involved in the illegal meeting (produces chilling effect) - Not in VA

Electronic Freedom of Information Act

(1) make it *easier* for the public to identify and *access gov records* (2) facilitated *computerization* of FOIA requests (3) reformed *timetable* and procedures for agencies to respond to Setup an electronic tracking system in 2007

Problems with FOIA

1) *Transparency message* not distributed evenly 2) High *court costs* from getting info from gov 3) Legally sanctioned removal of information (*redacting*) 4) Certain agencies (FBI/CIA) efforts to *weaken FOIA* 5) *Glomarization* of data ("cannot confirm or deny") 6) Computerization led to *higher fees* to access info (once for free) 7) Law excludes claims information to the plaintiff if based on news reports 8)

Prior Restraint: To consider before gag order (3)

1) quantity and content of media coverage 2) potential effectiveness of alternatives to a gag 3) the likelihood that a gag would remedy the harmful publicity

Remedies for Prejudicial Publicity

1. Changes in venue 2. Changes in venire (change of jury pool) 3. Continuance (delay trial until publicity lessens) 4. Severance (three separate trials) 6. Voir dire(question jury members to uncover bias) 7. Sequestration (lock up the jury ex. no access to TV) 8. Judicial admonition (don't talk to others about facts of case) 9. New trial

Central Hudson Test

1. Court must determine whether speech is commercial eligible for first amendment protection 2. Court must examine whether gov. asserts a substantial interest in regulating the expression 3. The court must examine whether the regulation directly advances the government interest asserted 4. Court must determine whether the regulation is sufficiently narrow

Federal Actions

1. Staff opinion letters 2. Advisory opinions (trends in advertising) 3. Industry Guides (ad guidelines for the industry) 4. Trade Regulation Rules (ad rules for the industry) 5. Consent Decrees (stop claim for future campaigns) 6. Cease-and-Desist Orders (stop immediately FTC) 7. Injunctions (court order) 8. Corrective Advertising (put budget to telling the public you lie)

Federal Common Law: Riley v. Chester

A former police officer sued a journalist to find out what the present police chief sad said about him The Third Circuit applied *Rule 501 of Federal Rules of Evidence* to protection of confidential sources - "All privileges shall be governed by the principles of the common law as they may be interpreted by the courts... in light of reason and experience"

Central Hudson Test

A four-part test used by the courts for determining restrictions on commercial speech

Press Enterprise *1* v. Riverside County Superior Court

A judge closed the voir dire examination of jurors in a rape-murder case. The judge also refused to release the transcripts of the questioning The Court declared the press had the right of access to a transcript of a preliminary hearing so long as it didn't invade privacy

Globe Newspaper v. Riverside County Superior Court

A judge ordered a rape trial closed because two of the victims were 16 and 17 years old The Court should not be closed if the name of the minors were already on public record

Department of the Air Force v. Rose

A law review editor requested information of the Air Force Academy internal discipline council. Access was denied under the personal privacy exemptions Court ruled that the personal privacy exemption should not be read as an absolute barrier against disclosure of information

Press Enterprise *II* v. Riverside County Superior Court

A magistrate excluded the press from a preliminary hearing scheduled to determine whether there was a probable cause that nurse Robert Diaz had murdered a dozen hospital patients The Court claimed defendants must provide specific evidence that an open courtroom would present a *"substantial probability"* of endangering their rights to a fair trial

Nixon v. Warner Communications

A record company wanted the right to copy Nixon's tapes for broadcasting and sale to the public (profit motive) No mandatory right of access to evidence

Zemel v. Rusk

A reporter wanted to go to Cuba in violation of State Department *travel ban* Court ruled that the right to publish does *not* carry with it the *unrestrained right to gather information*

Kissinger v. Reporters Committee for Freedom of the Press

A request was made for access to transcripts of Henry Kissinger's telephone conversations when he was secretary of state and national security adviser. Library of Congress possessed notes Congress is exempt from the freedom of information act. And the Library of Congress doesn't grant access to everyone

Houchins v. KQED

A television station was denied access to a portion of the Santa Rita jail where an inmate was reported to have committed suicide Court extended Pell ruling. Media doesn't have right of access

Problem with FOIA: False Claims Act

Allows private persons to file suits on behalf of the gov against federal contractors, such as gov contractors who are doing fraudulent activities Very difficult to prove fraudulent claim

Chrysler Corp. v. Brown

An auto labor union requested employee info that Chrysler had filed with the DOD. Chrysler did not want to DOD to release the info (automaker v. head of DOD) Court ruled that an official may release info covered by the exemption specified in FOIA. The "catch all" exemption must be followed

Journalist as a Third Party: Baker v. F & F Investment

Balk wrote "Confessions of a Block-buster" for the Saturday Evening Post. His anonymous source was given the pseudonym for "Norris Vitcheck." A group civil suit resulted and the *plaintiffs wanted the source's real name* The Second Circuit ruled that the source did not have to be revealed because the *three-part test had not been met*. Other sources had not been exhausted

Bates v. State Bar of Arizona

Bates wanted to run advertisements of the process he charges for routine legal services. This was in violation of State Bar regulations Court agreed that attorneys had right to advertise proces of services

Richmond Newspapers v. Virginia

Before beginning the fourth attempted trial of accused murderer, John Stevenson, Jude closed the trial at the request of the defense The Court held that public and media have first amendment right to attend trials, unless there's an actual reason

Federated Publications v. Swedburg

Bench Bar Press Guideline: voluntary guidelines of behavior Making voluntary guidelines mandatory is not a prior restraint

Branzburg v. Hayes

Branzburg appealed two court orders to testify in front of grand juries investigating drug use and sales. Caldwell and Pappus were requested to testify in front of grand juries concerning the Black Panthers Court determined that journalists, just like members of the public, have no First Amendment right to refuse to testify before a grand jury

Bridges v. California

Bridges made statement calling judge outrageous (indirect contempt) Court ruled punishment for criticism of pending court cases can occur only if there is an *extremely serious evil is imminent*

Greater New Orleans Broadcasting Association v. US

Broadcasting of casino ad was prohibited in Louisiana Court held that these types of ads cannot be banned in states where gambling is legal

Farr v. Superior Court of California

CA judge issued gag order of info connected with murder trails involving Manson family. Farr published info gained from one of the attorneys. Judge order Farr to name source CA shield law was ignored. The journalist had info about a certain crime and was asked to reveal that info. Farr spent 46 days in jail

Peremptory Challenge

Challenge which may be made without any reason Determine by state law as to how many of these an attorney get Limited use (use them or lose them)

Valentine v. Chrestensen

Chrestensen distributed handbills advertising tours of a former Navy submarine. This violated New York law. He reprinted handbill with a "political" message on back of ad Court ruled commercial advertising is not protected by the first amendment

Contempt Charges: Civil and Criminal

Civil: get someone to do something Criminal: punishes disrespects for the court (something that occurs in the courtroom itself)

Confidentiality: Cohen v. Cowles Media Co.

Cohen lost his public relations job after newspapers revealed his name in violation of a promise of confidentiality. He had revealed that a rival party candidate had been convicted of shoplifting 12 years earlier Court ruled that Minnesota's promissory estoppel common law was not in violation of the First Amendment. Reporters need to be careful about what is promised to news sources

Watson v. Philip Morris

Consumer groups were suing cigarette manufacturer over the ads of "light" cigs Court allow states to prohibit

Craig v. Harney

Craig held in contempt for comments made about a judge outside the courtroom The court ruled contempt powers should not be used to punish the media for what they communicate unless there is a serious and imminent threat toe administration of justice Uphold Pennekamp and removes indirect contempt

Electronic Freedom of Information Act: Data.gov

Data.gov created in 2009 to increase public access to high value machine readable data sets generated buy the executive branch of the federal government

1974 Privacy Act

Designed to protect personal information by government agencies

Contempt Charges: Direct and Indirect (Criminal)

Direct - the courtroom that disrupts the legal process (a phone out in the courtroom) Indirect - away from the courtroom (unconstitutional today)

Sheppard v. Maxwell

Dr. Sam Sheppard was convicted for murdering his wife. TC series and movie based on this case Court stressed that judges must ensure a dignified atmosphere in the court

Estes v. Texas

Estes became the focus of media when he was charged with fraudulently inducing farmers to buy nonexsistent fertilizer tanks and property. A two-day pretrial was broadcast live by both radio and TV Estes didn't get fair trial because cameras impacted individuals in trial

Exemptions: Agency memoranda

Exempts working documents circulated within agencies Ex. A document that describes the outcomes of nuking a city (which would terrify people, right?)

Minneapolis Star and Tribune v. US

FBI agents destroyed the camera and film of a photo journalist covering an FBI arrest DC Circuit ruled in favor of the media and required the FBI to pay damages and attorney fees

Criminal Proceedings: In re Farber

Farber refused to produce notes of his investigation into suspicious death in a New Jersey Hospital. He spent 40 days in jail and the NYTimes was fined $286,000 Judges require journalist to turn over their notes or names of sources to protect significant social interests such as the Sixth Amendment right of criminal defendants to obtain evidence in their favor and confront witnesses against them

Federal Advertising Agencies

Federal Trade commission Food and Drug Administration Federal Communication Commission U.S. Post Office Securities and Exchange Commission Alcohol and Tobacco Tax Division of the Internal Revenue Service

Protection of Confidential Source

First Amendment State Shield Laws Common Law (state and federal)

Garland v. Torre

First amendment protection Judy Garland wanted to know who at CBS revealed to Marie Torre was released from her contract. Torre refused and jailed for contempt *Journalist must reveal his/her source* if the government or plaintiff can meet the *"three part test"*

State of New Jersey v. Bruno Hauptmann

First case where cameras were included Hauptmann was accused of kidnapping and killed 18 month old son of Charles Lindbergh. Over 800 journalists covered the trial. Media coverage outside the courtroom motivated to *establish Canon 35*

Printer Ink Statutes

Found in 47 states Most make false advertising a misdemeanor

First Amendment v. Sixth Amendment

Freedom of speech v. fair, impartial jury If a newspaper reports on a court case before a jury meets, the jury could be persuaded by pre-trial prejudicial

Consumer Product Safety Commission v. GTE

GTE wanted to prevent information being released to consumer publications on television sets exploding Court upheld the "catch-all" exemption

Prior Restraint on Media

Gag orders on the media Gag orders on news sources

Plaintiff Must Prove

In Branzburg v. Hayes (1) Probable cause that a journalist has "clearly relevant" information (2) The information sought cannot be obtained by alternative means less destructive of First Amendment values (can't get the info anywhere else) (3) "A compelling and overriding interest in the information" (a reason the court wants the info)

Three Part Test

Information does to the heart of the matter (person know directly the information) Alternative sources have been exhausted (someone else could have had the information) Probably cause to believe that the journalist has information that is relevant to the plaintiff's claim

Civil Proceedings: Herbert v. Lando

Journalist's "state of mind" could be questioned and information could be required to be turned over

Gannett v. DePasquale

Judge prohibited the press from attending pretrial hearing in police officer shooting case. The pretrial hearing concerned a confession and the evidence that resulted as "fruits" of confession. Gannett used 6th Amendment right of public trial argument Court declared that the pres and the public do not have a constitutional right to attend *pretrial* hearings

Landmark Communications Inc. v. Virginia

Law against revealing name of judges undergoing review

Federal Sunshine Act

Legislation passed in 1976 and calls for federal agencies to meet in public - pertains to the same agencies subject to FOIA - 10 exemptions which would allow "closed session" (Decision is made in public but public is not invited for closed sessions. Discussion of reasoning.)

Irvin v. Dowd

Leslie Irvin was convicted for a murder in Evansville, Indiana. Case received extensive prejudicial publicity. Jurors admitted to prejudice

Deceptive Advertisements

Likely to mislead Deceive a reasonable customer Material statement or an omission that deceives

First National Bank v. Bellotti

MA law forbade corporate ads for a or against items to be votes on. State argued the money spent by corporations could drown out other POV Court argued that banks and other institutions could argue on economic issues

Brown v. Commonwealth

Murder case - heart of the matter

Murphy v. Florida

Murphy arrested for robbery and assault. Before the trial of the charges, he was convicted of murder and transportation of stolen securities. Argued criminal record prevented him from receiving a fair trial Do juries need to be blank space? No, jury does not need to be totally ignorant of the facts and issues of case

Self-regulation

National Advertising Division National Review Board National Association of Broadcasters' Television Code (no longer exists/violation of Sherman Antitrust) *lol, self regulation doesn't work tho

FBI v. Abramson

Nixon administration requested the FBI gather information on the "enemies" of president The Court ruled law enforcement information does not lose protection because of summaries

US v. Nixon

Nixon went to court to prevent the release of secret White House tapes to a special prosecutor investigating Watergate Court ruled that *executive privilege* can be asserted only when material consists of military or diplomatic secrets (ex. trading for hostages)

Chandler v. Florida

Police officers were charged with burglary. almost three minutes were broadcast of the trial depicting only prosecution's side of the case No evidence that the existence of cameras caused the defendant to lose his/her 6th amendment rights If cameras should be eliminated, defendant must prove the harm that cameras have caused Lead to *ABA canon 3 A (7)*

Courtroom Access (4)

Pretrial hearings Trial Jury Selection Court Records

FERPA (Buckley Amendment)

Privacy of education records

Exemptions: Information about wells

Protects geological and geophysical information On federal lands that is open to drilling, companies biding should on equal footing so we don't release extra information. Not our fault if there's no oil

Exemptions: Confidential business information

Protects trade secrets (think the crabby patty formula) and commercial or financial information that businesses submit to government agencies

Posades de Puerto Rico Association v. Tourism Co. of Puerto Rico

Puerto Rice had a law that prohibited ads directed at non tourists to gamble at casinos Court allowed the ad ban. Used central hudson test

FTC v. Raladam

Raladam advertised crushed animal livers as a cure of problems from baldness to a solution to a bad back Decision motivated Congress to pass the *Wheeler-Lea Amendment* to empower the FTC to act against all unfair and deceptive practices in commerce

FTC v. Colgate Palmolive

Rapid Shave had a demonstration in which the shaving cream claimed to shave tough dry sandpaper Court declared fake demonstrations are illegal when faked portion attempts to prove the product's claim

EPA v. Mink

Rep. Patsy Mink requested access to classified documents used to decide the issue of nuclear testing in Alaska The court rejected Mink's request motivated Congress to amend FOIA to allow court review of classified document (In camera review - judge makes ruling after examining information on their own)

44 Liquormart v. Rhode Island

Rhode Island had a statute that banned the ad of alcohol prices Court held that RI was unable to meet Central Hudson test that the price ad ban will significantly advance the Stat'es interest in curbing alcohol consumption

Rideau v. Louisiana

Rideau confessed to murder. His confession to a sheriff was aired by local TV Rideau did not have fair trial because the confession televised was seen as the trial

State University of NY v. Fox

SUNY had rules about using on campus facilities for commercial activities (think Tupperware) Court upheld that gov. doesn't have to use the less restrictive means to regulate commercial speech as state

Federal Advisory Committee Act of 1972

Secret advisory boards to government agencies (Hillary Clinton and Cheney) *not quite as important*

Private corporations v. Public corporations

Securities Act of 1933 and Securities Exchange Act of 1934 requires publicly held corporations to reveal certain information and must not report insider information *not quite as important to know*

Potential Prejudicial Pre-Trial Publicity

Set by American Bar Association Don't publish about the following topics because it could cause a mistrial: - Confessions (none are real until they're done on the stand) - Prior criminal records (irrelevant for the trial) - Results of lie detectors, blood tests, ballistics, etc. (speculation until given under oath) - Character flaws or life-style (ex. violent temper) - Potential witnesses, testimony or evidence (can be flawed) - Speculation by officials - Other sensational or inflammatory statements

State Shield Laws

Shield laws suck. Look at textbook to understand why

Nebraska Press Association v. Stuart

Six members of family were killed. A neighbor confessed to the killings. Judge issued an order prohibiting the publication of news obtained during public pretrial proceedings Court ruled gag orders on media is prior restraint and should only be used after *less restrictive alternative methods* are used.

Zurcher v. Stanford Daily

Student photo journalist for Stanford Daily took pictures of a confrontation between police and students. A search warrant was issued to collect all film, negatives and prints for evidence purposes Court held law enforcement agencies could use a search warrant to search newsrooms for evidence

Exemptions: Personnel, Medical and Similar Files

Such information would invade an individual's privacy

Pell v. Procunier

The CA state correction authorities prohibited media interviews with specific individual inmates Court ruled that members of the media have no constitutional right of access to prisons or their inmates beyond that afforded to the general public

Forsham v. Harris

The Committee on the Care of Diabetics wanted the FDA to request specific data from a team of consultants on the the effectiveness of various diabetes treatments The Court held that FOIA cannot be used to compel a federal agency to obtain data from a private contractor if the agency does not want to

Pennekamp v. Florida

The Miami Herald published a series of inaccurate editorials that accused judges of protecting criminals more than the law-abiding public The Court held that editorials that contain inaccurate information *did not pose a clear and present danger* to the administration of justice

Pittsburgh Press v. Human Rights Commission

The Pitts. Press ran ads as "help wanted male" and help wanted female". HRC issued an injunction to stop this practice Court declared employment discrimination which was an illegal commercial activity

Dickinson v. US

Two reporters violated a judge's order not to publish testimony on a murder conspiracy case in Baton Rouge Court of Appeals declared that an injunction must be obeyed, regardless of the ultimate validity of the court order Collateral bar rule - obey the judges order until you can get the order reversed by another judge

Central Hudson Gas & Electric Corp. v. Public Services Commission

Utility wanted to promote the use of electricity in violation of a state statute Court established four-part test to determine the

Virginia State Board of Pharmacy v. Virginia Citizens Consumer

VA had law that prohibited price advertisement for prescription drugs. A Citizen's group challenged the law Court recognized a constitutional protection for purely commercial speech motivated by a desire to profit

Bigelow v. Virginia

VA had statute prohibiting advertising abortion referral services. An off-campus paper advertised abortion services out of NY Court declared speech does not lose protection of the First Amendment merely because it appears in the form of commercial advertisement

Zauderer v. Office of Disciplinary Counsel

Zauderer wanted to run his law firm's ad with pics Court extended constitutional protections to illustrations and pictures

Computer Matching and Privacy Protection Act of 1988

allows government agencies to transfer information about individuals between agencies (electronic copies)

ABA's Canon 35

called for a ban on cameras and the broadcasts of trial

Press Privacy Protection Act of 1980

law enforcement must meet a burden of proof before a search warrant can be issued. A subpoena should be issued first A result from Zurcher v. Stanford Daily

ABA's Rule 3 A (7)

modified the original ban to include cameras when an appellate court rules they will not distract trial participants

Clery Act of 1998

notification of students of crimes on campus

Challenge for Cause

obviously bias, ask the judge to strike him/her Unlimited

Exemptions: Law enforcement investigations

prevents access to on-going investigations

Exemptions: Bank Reports

protects financial reports and audit information

Federal Sunshine Act: Open Government Act of 2007

suppose to speed up the process (only outcome is known by public)