Media Law Notes Guide

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Chapter 1 – THE AMERICAN LEGAL SYSTEM

Law =

Sources of U.S. law:




Common law =

Based on concept of Stare decisis =

However, sometimes society has changed and sometimes past laws don’t work anymore.

Options when a case has a precedent:

1.

2.

3.

4.

Reading a case citation = see Figure 1.1

Law of Equity =

Characteristics of Statutory Law (laws made by legislative bodies; those that are popularly elected and have authority to pass laws):

1.

2.

3.

4.

Characteristics of Constitutions:

1.

2.

3.

4.

Where does the U.S. Constitution rank in the hierarchy of law?

Two important concepts are used:

Vagueness =

Overbreadth =

Examples of Administrative agencies that can make administrative rules:

These agencies’ members are appointed by the ___________, approved by _________ and serve _______ terms of office. They deal with problems that are too technical or too large for the legislative branch.

Reasons the courts can review administrative rules:

*

*

*

*

Other sources of law:

federal court system

THE JUDICIAL SYSTEM (this is where laws are interpreted)

Facts vs. Law =

Characteristics of trial courts:

*

*

*

*

*
Characteristics of appellate courts:

*

*

*

*

*

*

*

Jurisdiction of federal courts (p. 17):

1.

2.

3.

4.

5.

6.

7.

What is the U.S. Supreme Court’s authority?

How does a case get to the Supreme Court?
1.

2.

Notes from Supreme Court video.

Supreme Court definitions:

Majority opinion =

Concurring opinion =

Dissenting opinion =

Per curiam opinion=

Memorandum order =

Tie vote opinion =

Characteristics of 13 circuits of the U.S. Court of Appeals:

*

*

*

*

Maryland is in the 4th circuit.

Power of judicial review =

Glossary of legal terms: http://www.uscourts.gov/Common/Glossary.aspx

Terms to know:

plaintiff —

defendant —

pleading —

demurrer —

summary judgment —

petitioner/appellant —

respondent/appellee —

Why do the names in cases switch order as they move through the legal system?

1st amendment

Chapter 2 – THE FIRST AMENDMENT

1st A Americans ignorance

http://www.firstamendmentcenter.org/34-say-first-amendment-goes-too-far

What percentage of Americans know that freedom of the press is covered by the 1st Amendment?

Know freedom of speech is covered?

“Congress shall make no law respecting an establishment of religion, or prohibiting free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble and to petition the government for a redress of grievances.”

What is notion behind the 1st Amendment?

A number of practices by the British government helped lead to freedom of expression in the newly developing USA.

Seditious libel =

Press licensing laws =

Printers’ bonds =

zenger_tryal_illustration

The implication of the John Peter Zenger trial:

Theories of why free expression has social value:

1.

Question: Do we have a true marketplace of ideas in today’s media with corporate ownership?

2.

3.

4.

5.

As First Amendment law has developed over the years, it has come to mean what the U.S. Supreme Court says it means. That’s primarily what we will concentrate on in this course.

FIRST AMENDMENT THEORIES

Absolutist theory =

Ad hoc balancing theory =

Preferred position balancing theory =

Meiklejohnian theory =

Access theory =

Miami Herald vs. Tornillo (1974)
Facts of the case:

Court said:
THE ALIEN & SEDITION ACTS: http://www.ushistory.org/us/19e.asp

What is a sedition act and why have they been instituted?

Why were the Espionage Act of 1917 and the Sedition Act of 1918 enacted? http://immigrationinamerica.org/482-espionage-and-sedition-acts-of-1917-1918.html

What was the 1940 Smith Act about?

How was a sedition statute used by the prosecution in the 1993 World Trade Center bombing?

How was this statute used to prosecute those responsible for the attacks on the WTC and Pentagon on Sept. 11, 2001?

DEFINING FREE SPEECH LIMITS
Clear and present danger test: http://legal-dictionary.thefreedictionary.com/Clear-and-present+danger+test

schenck Anarchists’ rally in NYC’s Union Square in 1914.

Schenck v. U.S. (1919)
Facts of the case:

Court said:

Whitney vs. California (1927)
Facts of the case:

Court said:

Dennis v. U.S. (1951)
Facts of the case:

Court said:

Yates v. U.S. (1957)
Facts of the case:

Court said:

Brandenburg v. Ohio (1969)
Facts of the case:

Court said:

ADVOCACY IN BOOKS

Hit-Man,-book200

Rice vs. Paladin Enterprises (1996)
Facts of the case:

Court said:

THE GITLOW CASE

What does the 14th Amendment guarantee?

Gitlow v. New York (1925)
Facts of the case:

The significance of the Gitlow case:

TAXATION AND THE PRESS
Unfair and discriminatory taxation has been deemed a violation of freedom of the press.

Grosjean v. American Press Co. (1936)
Facts of the Case:

Court’s Decision:

Minneapolis Star and Tribune Co. V. Minnesota Commissioner of Revenue (1983)
Facts of the Case:

Court’s decision:

Leathers v. Medlock (1991)
Facts of the Case:

Court’s decision:

Censored

PRIOR RESTRAINT

What is prior restraint?

The_Saturday_Press

Near v. Minnesota (1931)
Facts of the case:

Court said:

Reasons prior restraint may be acceptable:
1.

2.

3.

Regulation of content for broadcasting (from Chapter 16)

The Radio Act:

The Federal Communications Act of 1934:

Common carriers =

Because of the different nature of broadcast media, the Supreme Court has approved regulation of content of those media that would be considered unconstitutional for print media.

Why can broadcasting be regulated?

Frequency_Allocations_Chart_2011_-_The_Radio_Spectrum.pdf

What the FCC regulates & controls:

What the FCC controls:
Who is on the FCC?

FCC policing broadcaster behavior:

  • Broadcast license renewal time
  • Letters of reprimands, cease and desist orders, & fines to stations for violating a programming rule or statutory requirement.
  • Raised Eyebrow approach

 

Does free expression apply to flyers and brochures?
Organization for a Better Austin v. Keefe (1971)
Facts of the case:

Court said:

 

Protecting National Security
NY Times v. U.S. (1971) (Pentagon Papers case)
Facts of the case:

Court said:

 

U.S. v. Progressive (1979) (District Court in Wisconsin)
Facts of the case:

Court said:

U.S. v. Bell (2005)
Facts of the case:

Court said:

CHAPTER 3 — THE FIRST AMENDMENT, CONTEMPORARY PROBLEMS

Prior Restraint and the Student Press

tinkers

Tinker v. Des Moines (1969)
Facts of the case:

Court said:

 

hazelwoodm

Hazelwood v. Kuhlmeier (1988)
Facts of the case:

Court said:

Although some states enacted laws to give students more 1st amendment protection, the Hazelwood case also set off more censorship in public schools around the country. Examples of things censored:
*

*

*

*

*

*

When censorship of High School publications is allowed based on Hazelwood:
*

*

*

When is censorship of a HS publication not allowed:
*

*

*
What kind of content can be censored:
1.

2.

3.

4.

5.

Fraser v. Bethel School District, Washington state (1986)
Facts of the case:

Court said:

bong hits for jesus

Bong hits 4 Jesus case
Morse v, Frederick (2007):
Facts of the case:

Court said:

Kincaid v. Gibson (2001) U.S. Court of Appeals for the Sixth Circuit in Cincinnati
Facts of the case:

Court said:

Hosty v. Carter (2003):
Facts of the case:

Court said:

First Amendment problems that college publications still face:
*

*

*

*

Differences between college and high school newspapers:
1.

2.

3.

When universities believe they can censor a college paper:
1.

2.

3.

Clery Act and Virginia Tech:

 

BOOK BANNING in schools
Island Trees v. Pico (1982)
Facts of the case:

Court said:

 

time-place-mannerContent vs. Time, place, manner
Content Regulations:

Noncontent Regulations: Time, place, manner:

1. The rule must be content neutral, both on its face and in the manner which it is applied.
Example:

2. The law must not constitute a complete ban on a kind of communication.

3. The state must have a substantial interest to justify a restraint on speech.
Example:

4. The law must be narrowly tailored so that it furthers the state interest that justifies it, but is not overbroad.
Example:

The concept of public forums:
The government may own the public streets but it typically cannot legislate what is said on them typically.

Traditional public forums =

Designated public forum =

Nonpublic forum =

Private property =

Distribution is protected on a public forum:
Lovell v. Griffen (1938)

“Keeping streets clean” as an excuse?

How has Baltimore successfully banned some billboard ads for alcohol and cigarettes?

Does private property have to abide by the First Amendment?
(Robins v. Pruneyard Shopping Center, 1980)

Questions asked to determine if gov. can deny speech:
1. Is there a legitimate state interest?
2. Is the action/ordinance content neutral and even handed?
* vague – no definitions of terms, etc.
* overbroad – prohibits everything, wipes away protected speech in trying to stop unprotected speech.
3. Are there alternative vehicles of expression?

SON OF SAM LAWS

Simon & Schuster v. New York Crime Victims Board (1991)
Facts of the Case:

Court said:

Revised Son of Sam law:

HATE SPEECH AND FIGHTING WORDS
Fighting words =

Chaplinsky v. N.H. (1942)

skokie caseSkokie case (1976) — http://schedule.wttw.com/episodes/264929/Skokie-Invaded-But-Not-Conquered/

RAV v. St. Paul (1992) —
Facts of the case:

Court said:

Virginia v. Black (2003) —
Facts of the case:

Court said:

THE FIRST AMENDMENT AND THE INTERNET
How the courts have interpreted the Internet as a medium for 1st amendment cases:
*

*

*

*

*

THE HIERARCHY OF PROTECTED EXPRESSION

Top:

Next protection:

Least protected:

CHAPTER 4 — LIBEL: ESTABLISHING A CASE

From the media’s standpoint libel can be a costly endeavor:
*

*

*

*

*

Defamation:

Libel:

Slander:

Who can be sued for libel:

Punishing or frightening people with libel lawsuits.
SLAPP suits (Strategic Lawsuits Against Public Participation) http://www.thefirstamendment.org/antislappresourcecenter.html

California anti-SLAPP statutes:

Example of SLAPP suit:

Problems libel suits cause:
*

*

*

*

*

Preventing libel suits:
1.

2.

3.

Defamation holds a person up to contempt, hatred, ridicule, or scorn.
*

*

*

Plaintiff: the person who files the suit. WHO CAN SUE:
*

*

*

*

*

*

Defendant: Person/organization being sued. WHO CAN BE SUED:

 

WHO CAN’T BE SUED
*

*

*

libel

ELEMENTS OF LIBEL

1. Publication:

2. Identification:

3. Defamation:

4. Falsity
5. Fault (Chapter 5)

Libel per se –

Libel per quod –

Types of defamatory content:

Tangible forms of the defamation:

Protection for defamatory content:
1.

2.

3.

BUSINESS REPUTATION AND TRADE LIBEL

Trade libel:

VEGGIE LIBEL LAWS
These state laws outlaw intentional lies about fruits, vegetables, and other products grown in a state.
The Oprah Winfrey case, Texas Beef Group vs. Winfrey (1998)

4. Falsity:
Plaintiffs must prove defamatory statements are false.
*

*

*

*

*

*

*

LIBEL-PROOF OF FAULT — CHAPTER 5
The fifth element of Libel is Fault and it depends on who the plaintiff is in how this is determined.

Difference between public and private people:

New York Times v. Sullivan changed the face of libel law.

The requirements of actionable libel before 1964: (strict liability)
1. defamatory statement (clearly misstatement of fact)
2. identification (can be more than name, a description)
3. publication (if a third party has seen it)

nytsullivan

NY Times v. Sullivan (1964)
Facts of the case:

Court said:

Actual malice:

Rationale for the NY Times ruling:
*

*

*

The case left us with some definition problems, however.
Who is a public official?
What kind of behavior constitutes actual malice?
Do others have to prove actual malice?

Definition of a public official: (from 50+ years of court cases)
*

*

*

*

*

*

These public officials have to prove actual malice only for defamation about their Official conduct, not for statements about their private lives.
Actual malice must be shown is libelous remarks concern:
*

*

*

Defining Public Figures:

All-purpose public figure —

*

*

*

*

*

Limited-purpose public figures —

*

*

*
Gertz v. Welch (1974)
Facts of the case:

Court said:

Public figures are different from private people because:
1.

2.

Firestone. v. Time (1976)

Limited-Purpose Public Figures: They have to prove actual malice only for defamation directly connected to their voluntary public activity.

Richard Jewell case — Jewell vs. Cox Enterprises (1999)

Businesses as public figures
Determining factors:
*

*

*
If someone is a Public figure today, will he/she still be 20 or 50 years from now?

Private people must just show negligence (failure to exercise reasonable care) on the part of the media and injury from the defamation.

NEGLIGENCE
Examples of what might be considered journalistic negligence:
*

*

*

*

Stone v. Essex County Newspapers (1975)

PROOF OF ACTUAL MALICE:
Basically the plaintiff is trying to show that the media story lied. Is twisting a quote around a lie?

What is “reckless disregard for the truth”
*

*

*

*

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

*

*

*

*

Example of when it a media person may lose these kinds of cases:

falwell-hustler-first-timeHustler Magazine v. Falwell (1988)
Facts of the case:

Court said:

To win an emotional distress claim, a public figure must prove:
1.

2.

3.

Evaluate Martha Stewart’s 1997 case against the National Enquirer using the 5 elements of libel:

martha stewart libel

LIBEL — DEFENSES AND DAMAGES — CHAPTER 6

Summary judgment:

What the defendants argue:
*

*

*

When no summary judgment will be granted:
*

Statute of Limitations on Libel:

Jurisdiction —

Keeton vs. Hustler Magazine (1984) —

Calder v. Jones (1984)

The Internet & Jurisdiction: You can’t just sue anywhere because the Internet is everywhere; there must be a connection to the state where the lawsuit is brought.

COMMON LAW DEFENSES

TRUTH

* The media defendant must prove the truth of the libelous material published.

PRIVILEGED COMMUNICATION

Absolute privilege:
1.

Examples:

Qualified privilege:

Qualifications:
1.

2.

NEUTRAL REPORTAGE =

Edwards vs. National Audubon Society (1977, Ct of appeals):

To claim neutral reportage, charges must be:
1.

2.

3.

4.

Protection for Opinion:

Way in which opinion is protected

RHETORICAL HYPERBOLE

Figurative language and expressive hyperbole —

Greenbelt Cooperative Publishing vs. Bresler (1970)

OPINION AND THE FIRST AMENDMENT

THE OLLMAN TEST
Ollman v. Evans, 1984, U.S. Court of Appeals in Washington D.C.
Facts of the case:

Court offered four criteria for deciding if this is protected opinion:

*

*

*

*

Fair comment and criticism —

cherry_sisters_drumCherry Sisters v. Des Moines Leader (1901)

3-part test of fair comment and criticism:
1.

2.

3.

DEFENSE AND DAMAGES

Consent —

Implied consent —

RIGHT OF REPLY:

DAMAGES: Plaintiffs usually must demonstrate harm to reputation, emotional well-being, or financial status to win monetary damages.

CHAPTER 7 — PRIVACY/APPROPRIATION AND INTRUSION

History of privacy law:

Privacy’s first definition:

Privacy law deals with __________________ and is rooted in ______________________________________.

Privacy law is typically________ law and _______________ _________________________________________________.

Four areas of privacy have developed through common law:
*appropriation
*intrusion
*private facts
*false light

cariou_prince

Artist Richard Prince was sued for appropriation in 2012 after the used Patrick Cariou’s photos of Rastafarians in Jamaica (left) in his art (right).

http://www.wnyc.org/story/197238-appropriating-images-for-art-when-is-it-okay/

APPROPRIATION

Appropriation =

The right of publicity (recognized in 20 states) —

*

*

*

*
Unauthorized appropriation of celebrities’ identities does not necessarily cause mental distress, but may diminish their publicity value, particularly if the appropriation is extensive or tasteless.

spanky

Example: George “Spanky” McFarland case:

Identity —

Carson v. Here’s Johnny Portable Toilets (1983)

 

Midler v. Ford Motor Co. (1988)
Facts of the case:

Court said:

Disclaimers:

Public relations promotions:

Parody is usually OK.

treasury bonds

Cardtoons v. Major League Baseball Players Association (1996) (ct of appeals):

Advertisements: Many of the appropriation cases involve the unauthorized use of a person’s name or identity in an ad to attract attention to a product or service. Examples:
*

*

*

*

*

Newsworthiness/1st Amendment privilege vs. Right of publicity

The Booth rule —

However, the ad or promotion cannot imply that the celebrity endorses the medium.

Cher v. Forum (1982)

Consent — very important, especially when you are dealing with a promotional or commercial purpose.

*

*

*

*

*

*

Shields v. Gross (1981)

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LAYEN® 32GB Spy Glasses With Hidden Pinhole Camera & Video Recorder. Mini DVR, Secret Video & Audio Recording DV Device

INTRUSION and TRESPASS
4th amendment —

Tort law protects citizens from intrusions by private citizens, including reporters.

Intrusion =

Examples:

Tape Recording and Wiretapping
Maryland law —

Lawful surveillance:

Intrusion into private places:

Harassment, Assault, Overzealous shadowing.

jackie-ron-gallela
Galella v. Onassis (1973)

 

Secret recording
Dietemann v. Time Inc. (1971)
Facts of the case:

Court said:

Receiving stolen information:

When you are not protected:
*

*

Assumption of risk analysis in intrusion:

Chapter 8 — PRIVATE FACTS

Also called the embarrassing facts tort.

Private facts tort is defined as the publicizing an individual’s private information that (a)_____________________________ and (b)_____________________________.

What private facts plaintiffs sue for:

The newsworthiness issue:

Oliver Sipple lunges for Sara Jane Moore as shot was fired.

Sipple v. Chronicle Publishing Co. (1984) (CA appellate court)

Naming Rape Victims.
First, most media outlets see this as an ethical issue; they don’t want to further traumatize the victim so they don’t publish names.

Why some think naming rape victims is bad policy:
*

*

*

Why others think it is best to name rape victims:
*

*

In terms of the media the issue also revolves around the fact the information about the rape is a government document — the police report.

Cox Broadcasting v. Cohn (1975)
Facts of the case:

Court said:
1.

2.

Florida Star v. B.J.F. (1989)
Facts of the case:

Court said:

Definition of offensive material:

Barber v. Time (1942)

Definition of “legitimate concern to the public”

Definition can weather the passage of time
Sidis v. F-R Publishing Corp. (1940)
Facts of the case:

Court said:

Diaz v. Oakland Tribune (1983)

Newsworthiness may also be defined as something of public importance because it is strange, unusual, or simply interesting. The strange and unusual have a quality of interest that attracts public attention.
Virgil v. Sports Illustrated (1976)

FALSE LIGHT

False light is somewhat similar to libel law.

The media defendant may claim the plaintiff is not identified or the publication is true.

Like private facts tort, false light plaintiffs must prove the offending material was widely disseminated, or highly publicized.

Fictionalizing —

How docudramas get around these lawsuits:
*

*

*

*

Disclaimers (“any resemblance to real people and events is purely coincidental”) don’t protect you. If you have committed actionable false light or appropriation, they can sue.

Proving actual malice
Time v. Hill (1967)
Facts of the case:

Court said:

Points to remember about invasion of privacy:
1.

2.

3.

4.

Discussion examples:
ralph diving pig

Braun v. Flynt (1984)

 

Arrington v. NYT (1983)

CHAPTER 9 — JOURNALISTS GATHERING NEWS
Is there a constitutionally protected right for reporters to gather news or attend meetings?

The Baltimore Sun v. Ehrlich (2005)

The Supreme Court has only guaranteed access to _________________.

The First Amendment does not allow reporters to break laws in its name.

U.S. v. Matthews (1998) (district ct in MD) —

Trespassing:

Example:

When journalists are seen as trespassers:


FRAUD
Food Lion v. Capital Cities/ABC (1999)

Disorderly conduct —

When public place becomes a place of disorder or disaster:

Each state has unique eavesdropping and hidden camera laws.

Because there was nothing in the constitution to guarantee access to government records, etc. the Congress passed the federal Freedom of Information Act (FOIA).

Although there is still quite a lot that government can withhold for public policy, personal, or political reasons, Americans have more access to government information that citizens of any other country.

THE FEDERAL FREEDOM OF INFORMATION ACT (FOIA) (1966)http://www.foia.gov/about.html

FOIA applies to all government agencies and independent regulatory agencies such as the FCC and presidential commissions such as the postal service. It applies to records such as computer printouts or photos and other materials that can be copied.

In 1996, Congress adopted the Electronic FOIA, which covers:

FOIA cannot be used to gather documents in the possession of:
*

*

*

Homeland Security Act (2002):

redacted document^Redacted document^

FOIA Exemptions:
Exemptions permit but do not require a federal agency to withhold documents.

1. National Security:

2. “Housekeeping” — Agency personnel Rules and Practices:

3. Statutory Exemptions:

4. Confidential Business Information:

5. Agency Memoranda:

Exemption 5 incorporates the common law practice of executive privilege:

U.S. v. Nixon (1974)

6. Personnel, Medical and Similar Files:

7. Law enforcement investigations:

To be exempted, disclosure “could reasonably be expected” to:
7a.

7b.

7c.

7d.

7e.

7f.

A 2-part test is used to decide an exemption 7 case:
1.

2.

8. Banking reports:

9. Information about Wells:

CHAPTER 10 — PROTECTION OF NEWS SOURCES

How do the judicial system and the rights of journalists come into conflict?
*

*

*

*

Although they are supposed to the last resort, many journalists use confidential sources:
*

*

*

6th_amendment

Explain the 6th Amendment in terms of evidence and witnesses:

CONFIDENTIAL RELATIONSHIPS
Journalists do not have the common law privilege that protects confidential relationships between lawyers and clients, doctors and patients, and priests and penitents.
Why not?
*

*

*

How is the reporter-source relationship like a contract?
Cohen v. Cowles Media Co. (1991)
Facts of the case:

What is promissory estoppel?

To use promissory estoppel, you must show:
1.

2.

3.

What did the Minnesota Supreme Court determine about whether Cohen could establish that he met the requirements of promissory estoppel?
1.

2.

3.

JOURNALISTS AND CRIMINAL PROCEEDINGS
* 44 percent of the subpoenas issued to reporters are for criminal trials, more than any other legal proceeding. If their stories disclose direct knowledge of a crime or the suspect, they may be called as witnesses before the grand jury or during the trial.

Their 3 options are:
1.

2.

3.

THE ORIGINS OF JOURNALIST’S PRIVILEGE, i.e. is there constitutional protection for news sources?

Branzburg v. Hayes (1972) — This case was actually 3 cases in one:
Give the facts of each case:
1.

2.

3.

What did the reporters argue?

What did the majority of the Supreme Court say?

What did the dissenters say?

What was the precedent set by this case?

Journalists as defense witnesses
Sixth Amendment allows defendants to compel witnesses in his favor to testify.
When can the defendant argue that the reporter’s First Amendment privilege can be overcome:
1.

2.

3.

4.

Anonymity and the Internet

Cohen &Google/Blogger case:

JuicyCampus.com case:

 

Mobilisa Inc. v. Doe test (2007):

*

*

*

SHIELD LAWS 

http://www.rcfp.org/browse-media-law-resources/guides/reporters-privilege/shield-laws

What is a shield law and in what state did it begin?

What these laws establish:

*

*

*

Shield laws and college journalists:

Problems with shield laws
*

*

*

*

*

*

A FAIR AND PUBLIC TRIAL:
TRIAL LEVEL REMEDIES AND RESTRICTIVE ORDERS. CHAPTER 11

6th Amendment:

Major problem for a fair trial:

Types of media reports considered prejudicial by the legal system:
* Confessions:

* Prior criminal records:

* Results of lie detector tests, blood tests, ballistics tests, and other investigatory procedures:

* Character flaws or life styles:

* Potential witnesses, testimony and evidence:

* Speculation by officials:

* Other sensational or inflammatory statements:

The Juror’s duty:

Causes of an unfair trial:
Irvin v. Dowd (1961)
Facts of the case:

Court said:

Nonprejudicial publicity
Murphy v. Florida (1975)

REMEDIES FOR PREJUDICIAL PUBLICITY

1. Continuance —

2. Change of venue —

Change of venire —

3. Voir Dire process —

4. Judicial control of the courtroom —

5. Judicial admonition —

6. Sequestration —

New trial —

GAG ORDERS —

sam sheppard in courtroom

Sheppard v. Maxwell (1966)
Facts of the case: http://www.clevelandmemory.org/legallandmarks/sheppard/

Court said:

The Supreme Court said the judge had failed to protect the defendant in 3 ways:
1.

2.

3.

http://www.nytimes.com/1998/03/05/us/dna-test-absolves-sam-sheppard-of-murder-lawyer-says.html

Is prejudice there in the jurors after heavy media coverage:

Justice Dept. Rules:

Gag orders aimed at the press:
Nebraska Press Assn. v. Stuart (1976)
Facts of the case:

Court said:

1.

2.

3.

Judges should look at three considerations in decisions about gag orders:
1.

2.

3.

Gag orders on trial participants:

* Lawyers may be restricted by the rules that govern the bar association, which license them. Dominic Gentile v. State Bar of Nevada (1991)

FREE PRESS/FAIR TRIAL: CLOSED JUDICIAL PROCEEDINGS, CHAPTER 12

ACCESS TO COURTROOMS
Richmond Newspapers v. Virginia (1980)

The Press-Enterprise Test (1986)
1.

2.

3.

4.

5.

Some court closures that are still allowed:
*

*

*

Hearings presumed open are:
*

*

*

*

*

*

U.S. v. Moussaoui (2003)
Facts of the case:

Court said:

Most Court records are also presumed open.
What records might not be open:
*

*

*

camera map

CAMERAS AND RECORDINGS IN THE COURTROOM
Supreme Court bans the televising of its arguments.
Using cameras in the courtrooms:
Estes v Texas (1965)

Chandler v. Florida (1981)

Do cameras in the courtroom affect jurors?

Cell phones, laptops, tweets and texts:

COPYRIGHT AND TRADEMARK — CHAPTER 14

TUWastedtoCare001-CandelaParody or copyright infringement?

http://www.baltimorefishbowl.com/stories/10761/#more-10761

Copyright is a property wrong. Something tangible is being taken. Copyright laws were created to promote creativity. You can’t copyright an idea or facts, only creative expression. Copyright takes place at time of creation.

Plagiarism —

WHAT IS COPYRIGHTABLE?
Copyright protects “writings,” but this much more than expression of words on a printed page.

Expanded definition:

A work should be created independently with a modicum of intellectual effort. The work need not be unique, novel, or even good.

But it must be fixed in a tangible medium of expression as soon as it is created or recorded.

Things covered:
1.

2.

3.

4.

5.

6.

7.

Copyright allows:

When and why did copyright law begin?

Berne Convention for the Protection of Literary and Artistic Works of 1988 =

Rights given under copyrighted law:
1.

2.

Derivative work:

3.

4.

5.

6.

What are the Rights of the Copyright Owner?
Authors control the commercial use of their work

* authorization of adaptations

* distribution of copies

* to perform and display the work publically

* to copy works

What cannot be copyrighted?
*

*

*

*

*

Only original works can be copyrighted:
*

*

Compilation or derivative works can also be copyrighted.
Compilation =

Example:

 

How long does a copyright last?

What determines fair use of copyrighted works i.e. limited copying?
Fair Use section of 1976 copyright act. Factors to be considered when ct. is determining whether copying is fair use: http://www.benedict.com/info/fairuse/fairuse

copyright-fair-use-8-728

1. Purpose and character of copying/use.

Basic Books v. Kinko’s graphics. (1991)

When educational use is fair use:
*

*

*

*

*

*

2. Nature of the work.
Questions the courts ask:
*

*

*

*

Harper and Row v. Nation (1985)
Facts of the case:

Court said:

3. Portion of the original work copied.

* Quantity —

* Quality —

Acuff-Rose Music Inc. v. Campbell (1994) http://www.benedict.com/audio/crew/crew
Facts of the case:

Court said:

4. Effect of use on the monetary value of the original.

What is time shifting and why is it not copyright infringement?

copyright_symbol_9

How do you copyright something?
*

*

*

Can a work be protected even without the notice?

Why is registration of copyright important?
*

*

*

*

 

Universal City Studios v. Film Ventures (1982)

Funky Films v. Time Warner (2006)
Facts of the case:

Court said:

Copyright infringement on the Internet:
*

*

*

Playboy cases: 1993 and 1995 —

Digital millennium copyright act & other information about copyright can be found at: http://www.benedict.com

Freelancers vs. Employees’ copyright

Typically the employer owns the copyright if:
*

*

ccnv-v-reid-sculptureWork for Hire case
Community for Creative Non-Violence v. Reid (1989).
Facts of the case:

Court said:

The result of this case for other freelancers:

Tasini et al vs The New York Times et al (1999):
Facts of the case:

Court said:

Google, YouTube & copyright (2010):

REGULATION OF ADVERTISING, CHAPTER 15

FIRST AMENDMENT ISSUES…
The Hierarchy of speech
Top: Political speech, little prior restraint
Below: Commercial speech; government may regulate by demonstrating reasonable need

Why?
*

*

*

Valentine v. Chrestensen (1942)
Facts of the case:

Court’s reasoning:
Bigelow v. Virginia (1975)
Facts of the Case:

Court said:

VA State board of pharmacy v. Virginia Citizens Consumer Council (1976)
Facts of the Case:

Court said:

Definition of commercial speech:
*

*

*
Commercial Speech Doctrine:
a.

b.

c.

Central Hudson v. Public Service Comm. (1980)
Facts of the Case:

Court said:

Central Hudson test:
1.

2.

3.

4.

 

ADVERTISING FOR ALCOHOL, CIGARETTES, AND GAMBLING
What is a legitimate government regulatory interest?

Posadas de Puerto Rico v. Tourism Co. of Puerto Rico (1986)
Facts of the case:

Court said:

44 Liquormart case (1996):

Can a media outlet refuse to take advertising or is that a violation of the First Amendment?

DO NOT CALL Registry
Mainstream Marketing Services v. FTC (2004)
Facts of case:

Court said:

REGULATING ADVERTISING
Self regulation:

Competitor/consumer pressures
The Lanham Act:

District court developed the Lanham Act false advertising test in 1974:
*

*

*
The plaintiff is trying to:
*

*

Example:

What consumers can do:

Federal regulation of advertising: http://www.ftc.gov/news-events/media-resources/truth-advertising
Federal Trade Commission Act of 1914:

Unfairness:

Food & Drug Administration:

What the FTC has jurisdiction over:
*

*

*

reebokeasytone

Federal Trade Commission announced that Reebok has agreed to pay $25 million in settlement for false advertising claims.  http://www.advirtues.com/2011/09/30/reebok-easytones-workout-or-worked-over/

FALSE OR DECEPTIVE ADS
Deceptive Ad:

Kinds of Falsehood:
* express falsehoods:

* implied falsehood:

Advertisers should have a reasonable basis for the objective claims in their ads:
*

*

*

*

*

*

acai-berry-site

https://www.ncconsumer.org/news-articles/fake-news-site-operator-marketing-acai-berry-products-to-surrender-all-assets.html

Fake news Websites:

FTC Remedies to Halt Illegal Ads
Guides:

Voluntary compliance:

Consent orders:
*

*

*

*

Litigated Orders:

What’s looked at:
*

*

*

*

Failure to abide by a litigated order can lead to fines of $10,000 a day. Some companies still take the fines because it’s cheaper.

Example: The Geritol case:

Substantiation:

Corrective Advertising:

1971 — first corrective ad:

Injunctions:

Trade Regulation Rules:

Bait and switch advertising is illegal.

Publisher Liability for advertising
Braun v. Soldier of Fortune (1993)
Facts of the case:

Court said:

 

PARTS OF CHAPTERS 13 & 16: Obscenity, pornography & indecent material 

porn statshttp://gizmodo.com/5552899/finally-some-actual-stats-on-internet-porn First, it should be remembered that pornography is legal but obscenity isn’t.

Indecent material/Pornography =

http://www.utne.com/community/thexxxfactor.aspx#axzz36YA3v2KI

Obscenity =

First comprehensive federal obscenity law was the Comstock Act of 1873. It was an act for the suppression of trade in and circulation of obscene literature and articles of immoral use. Comstock fined people as a special agent of the post office. It was not until the 1957 Roth case that the Supreme Court ruled on the constitutionality of punishing obscenity.

THE MILLER DEFINITION OF OBSCENITY
Miller v. California (1973)
Facts of the case:

Court decision:

The Supreme Court applied a three-part test:

a.)

b.)

c.)

All three parts must be met if a work is to be called obscene and outside constitutional protection.
Who is an average person?
*

*

*

*

What is the community standard?
*

*

How is Patent offensiveness defined?
*

*

*

*

*

PROTECTING CHILDREN/TEENS

Variable obscenity statutes: One for adults and one for minors.
Sexual materials that would not be obscene to adults can be prohibited for children.

Why do porn magazines have covers or warnings on them?
Ginsberg v. NY (1968)

1988 Child Protection and Obscenity Enforcement Act, 1996 amendments & 2002 Supreme Court decision:

Sexting by minors:

Link to info about sexting laws across the USA:  http://mobilemediaguard.com/state_main.html 

sexting-laws

Filtering software in libraries:
U.S. v. American Library Assn. (2003)
Facts of the case:

Court said:

BROADCASTING & INDECENT MATERIAL

The FCC can revoke any broadcast license if the licensee transmits obscene or indecent material over the airwaves.

7 Dirty Words

FCC v. Pacifica Foundation (1978)
Facts of the case:

Court decision:

The important considerations should be:
1.

2.

3.

4.

Definition of Indecency =

Time for indecency —
Obscenity in broadcasting is governed by the Miller v. CA decision.

Why doesn’t indecency apply to cable?

 

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