Media Law First Amendment Rights

Media Law & Legal Resources Test 1: Intro to the Law, Part I

Housekeeping This class meets every day for six weeks. There is a considerable amount of reading. There is no memorization – but a lot of analysis. I expect a lot out of all my students. I also teach this class through independent study. I am offering you the opportunity to take the independent study course, but still attend lectures.

Speaking Law Lawyers (including judges, legislators, and lobbyists) pay good money to make sure they can make good money off of you not understanding the law. Laws will never be easy to find. Laws will never be easy to read. Laws will never be easy to interpret. This class can make it easier.

American Civics 101: Federalism

Preemption: If there is a conflict between a state and a federal law, the federal law wins. Both laws are satisfied if the state law is satisfied, thus there is not a conflict. The federal law can be violated even if the state law is satisfied, thus there is a conflict.

Reading a Rule Identify who the rule regulates. The speed limit is 55 mph. Identify who the rule protects. The speed limit is 35 mph during school hours. Identify what the rule demands/prohibits. No left turn. Yield. One Way. Identify unclear language.

Reading a Rule (cont.) Identify unclear language. Officers may ticket cars in the carpool lane with fewer than three passengers. Is a truck a car? Is the driver a passenger? Are animals passengers? MAY The property is the finder’s if the real owner is not found in 30 days. When does the 30 days start? What qualifies the “real owner”? Who, if anyone, has to look for the real owner?

Reading a Case Criminal Case (Prosecution v. Defendant) Prosecution State or Attorney General Government official trying to prove legal violation Defendant Party trying to refuteprosecution’s assertions Not necessarily asserting innocence Verdict is guilty/not guilty NOT guilty/innocent

Reading a Case (Cont.) Civil Case (Plaintiff v. Defendant) Plaintiff Party who has been harmed Trying to prove the other party is responsible for the harm And trying to prove the other party is liable for the damage caused Defendant Party trying to refute plaintiff’s assertions May refute either or both the responsibility or the liability

Reading a Case (Cont.) Identify the parties Who is suing whom? Names, occupations, relationships, etc. Identify the problems What happened? Make sure these are facts. If the stories are different, tell them all. Identify the analysis What rules did the court use? Identify the analysis (cont.) What policies did the court invoke (e.g. equity)? What history did the court rely on? Identify the rule What did the court hold? What did the court decide? Who won? Who lost?

Reading a Case (Cont.) It’s important to know where the case came from. Different courts have different levels of authority over other courts.

Reading a Case (Cont.) It’s important to know who is talking in the case. Cases have different sections.

Interpreting the Law Technically, just reading a rule or a case is interpreting the law. But, usually, you are not interpreting one law unless another situation depends on the meaning. Thus, interpretation is only accomplished through application. Application is accomplished via analogy. Cat: Dog :: Kitten: Puppy Tea: Kettle :: Coffee: Pot Comparing, differentiating/distinguishing.

Legal Analogy 1 The court says the state cannot set different speed limits for blue cars and yellow cars because “neither color car is inherently more or less dangerous – they both stop at the same rate.” What would the court say about setting different speed limits for commercial vehicles (buses, delivery trucks, etc.) and personal vehicles? What about different speed limits for larger personal vehicles and smaller personal vehicles? What about for convertibles?

Legal Analogy 2 The court says Jane Roe had to pay the fine because she crossed against the light during a non-emergency situation: “Having a baby takes hours. She could have waited for the light.” What would the court say about John Doe crossing against the light because his child dashed out into the road? What if his child were already safely across? What if it were his dog? A stray dog?

When to Call the Professionals Here’s what you, personally, can do now when faced with a legal question or situation. Find the pertinent rules. Determine what they mean. Determine whether a person threatening to sue you has a credible case. Here’s what you, personally, should do next. Have a meaningful conversation with a licensed attorney. Your knowledge will limit their power.

Test 1: Intro to the Law, Part II First Amendment

The First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; orabridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the Government for a redress of grievances.

Reading the First Amendment Whom does the First Amendment regulate? Congress Whom does the First Amendment protect? It doesn’t say. What does the First Amendment prohibit? The making of laws that abridge the freedom of speech, or of the press. What might be unclear? Congress Abridge Freedom of speech or of the press Whose freedom

“Congress” Defined Congress, originally meant only the federal legislative branch. The Fourteenth Amendment incorporated the state governments into the language of the First Amendment. Local governments are included as state governments. “State actor” or government action. Actors on behalf of “the state” or employed by “the state”

“Abridge” Defined Regulating speech in a manner that is not necessary. Does not violate due process Offers a chance to be heard in court Offers a chance to avoid losing the right Does not regulate content Viewpoint Discrimination Time, Place, Manner Restriction Regulating Actions Prevents a specific harm Vague Overbroad

“Abridge” Defined : “Necessary” Balancing Tests My rights end where yours begin Is the right more important? Is the protection more important? Clear-and-Present-Danger Test Replaces the “Bad Tendency” test Punishes speech that poses a definitive and immediate threat to public safety or national security Writing a letter to the Speaker of the House asking that a sitting President be impeached. Writing an editorial saying the world would be a better place without the President. Writing an editorial suggesting someone slap the President. Writing an editorial suggesting someone kill the President.

“Freedom” Defined We have the right to seek and find the truth. Thus, we have a right to convey the truth. Thus, we have a right to convey information, thoughts, opinions, beliefs that may result in finding the truth. We have the right to participate in political processes. Thus, we have a right to know about political processes. Thus, we have a right to convey information, thoughts, opinions, beliefs about political processes. We have the right to govern the government. Thus, we have a right to discover government actions. Thus, we have a right to discuss government actions. Thus, we have a right to protest government actions.

“Freedom” Defined : Hierarchy Not all speech is created equally. Hierarchy based largely on the reasons for protecting speech

Whose Freedom? The worst kind of ambiguity – the unspoken protected Courts have had a lot of leeway in determining who has the right to speak Again, rooted in why we protect speech Age Age of speaker Age of audience Forum Public Designated Public / Quasi Public Private

Whose Freedom? (Cont.) Official/Authoritative Speakers Government Employees Right v. Duty Limited Right National Security Political/Judicial Fairness Media Public Media  Public Interest Increased Availability  Increased Control/Censorship

Test 1: Intro to the Law, Part III First Amendment

Prior Restraint Injunctions Almost never granted Speech is presumed harmless and beneficial Pre-Publication Agreement Usually upheld Keyword is “agreement” Governmental Review Military information Usually allowed Intended for security Licensing Standards Usually overturned Reasonableness standard Taxes Cannot be selective Cannot use content Post-Publication Punishment Balancing tests Not based on content Not a prior restraint

Content Neutrality The most important thing to remember is that the First Amendment protects EXPRESSION. Some behavior is considered expression, but the law can still regulate behavior and actions. The law intends to protect a substantial government interest. The law advances that interest. The law is narrowly tailored. The law does not block the message completely.

Practice Question You come into your office at the television station, and there is a letter from the network suits. Dear Station Manager, Please be advised that there will be some changes made next month. First, you will no longer be able to air programs where women have on V-neck sweaters with no shirt underneath. Also, you have to air one more commercial each half-hour to compensate for a new licensing fee Nevada is imposing on all networks that air reruns from the 1980s. The extra ads can fill the gap when you stop running that breast cancer P.S.A. – the governor sent us a letter telling us we can’t have naked chests on the air anymore. Please don’t forget we have to send a tape of the interview with the General to his commanding officers before it airs – you know his tendency to say stupid things. The note attached is from your station manager: I’m meeting with legal this afternoon, “What’s your advice?”

Practice Question : Issues Cannot broadcast women in V-neck sweaters. You will mention this as an issue, because it is a restriction on speech/broadcasting. Have to air more commercials. You will mention this as an issue, because it compels speech/broadcasting. New licensing fee on all networks that air reruns from the 1980s. You will mention this as an issue, because it could possibly be a prior restraint. Stop running that breast cancer P.S.A. – the governor sent us a letter. You will mention this as an issue, because it is a restriction on speech/broadcasting. Send a tape of the interview with the General … you know his tendency to say stupid things. You will mention this as an issue, because it could be a prior restraint

Practice Question : Rules Cannot broadcast women in V-neck sweaters. Perform a balancing test for restrictions. Have to air more commercials. First Amendment protects against state actors. New licensing fee on all networks that air reruns from the 1980s. First amendment prohibits content-based restrictions, and licensing fees are restrictions. Stop running that breast cancer P.S.A. – the governor sent us a letter. First Amendment protects against state actors. Send a tape of the interview with the General … you know his tendency to say stupid things. Security review or military review has to be done for national security purposes.

Practice Question : Analysis Cannot broadcast women in V-neck sweaters. This is probably the network’s rule, and the First Amendment only protects against state actors. Have to air more commercials. No First Amendment claim, again, there is no state actor. New licensing fee on all networks that air reruns from the 1980s. This is probably a content-based restriction, and thus unconstitutional. Stop running that breast cancer P.S.A. – the governor sent us a letter. The governor is not acting in an official capacity – not a state actor here. He has a right to say what he wants, but we have a right not to listen to him. Send a tape of the interview with the General … you know his tendency to say stupid things. If “stupid” refers to embarrassing, we don’t have to edit, but if “stupid” refers to dangerous, we will.

Practice Question : Conclusions Cannot broadcast women in V-neck sweaters. You can take it up with the network, but no legal claim I’m aware of. Have to air more commercials. Again, you probably don’t have legal recourse. New licensing fee on all networks that air reruns from the 1980s. You can bring a claim against the state and have this law taken off the books. Stop running that breast cancer P.S.A. – the governor sent us a letter. I would send the governor a polite letter thanking him for his input, but explaining the importance of early detection. Send a tape of the interview with the General … you know his tendency to say stupid things. Submit the tape for review, but let legal know you may need their advice about the actual edits requested.

N O D N.O.D. is the most important thing. No Outline Dumping Don’t try to squeeze in everything you know that’s related to the issue. Stick to the good stuff. E.G.: If the facts indicate Congress passed a law … … don’t include a discussion of whether Congress is a state actor. Get down to analyzing the law Keep it relevant. THIS MEANS NOT ALL ISSUES ARE CREATED EQUAL.

Good Luck!! Ask questions. Look things up. Work together or alone. If at first you don’t succeed…

Media Law & Legal Resources Test 1 & Final Project

First Things First If you are interested in taking notes for other media law students And have been AND plan to continue to attend class REGULARLY Contact the Center for Educational Access ada@uark.edu 575-3104 Can be compensated $25/credit hour 16 hours of community service/credit hour

Busy Weeks No class on Monday (Memorial Day) Lecture on Tuesday Test 2 on Wednesday Quiz on Thursday Lecture on Friday Lecture on Monday Lecture on Tuesday Test on Wednesday Quiz on Thursday No class on Friday (Wal-Martian Invasion)

Test 1: Quick Poll Who hated it? Who felt more comfortable after the first attempt? Who wants the same format for the remaining tests?

Test 1: Quick Review Question 1: Will the discarded guest be successful in suing the senator? Yes, you can sue anyone for anything in our judicial system. 0% Yes, the First Amendment regulates state actors, and the senator is part of congress. 5.882% No, the First Amendment does not apply in private venues, and the senator’s home is a private venue. 11.765% No, the First Amendment regulates state actors, and the senator is not a state actor here. 82.353%

Test 1: Quick Review Question 2: Will the discarded guest be successful in suing the off-duty police officer? Yes, you can sue anyone for anything in our judicial system. 2.941% Yes, the First Amendment regulates state actors, and even an off-duty officer is considered a state actor. 63.235% No, the first amendment does not apply in private venues, and the senator’s home is a private venue. 13.235% No, the First Amendment regulates state actors, and an off-duty officer is no longer a state actor. 20.588%

Test 1: Quick Review Question 3: Assuming the judge holds that the off-duty officer is a state actor, what would his best defense be? You cannot sue me under the First Amendment; I was just doing my job. 5.882% I may have violated your First Amendment rights, but I did so because your behavior undermined a legitimate state interest. 66.176% You cannot sue me under the First Amendment; I was in a private home. 16.176% I may have violated your First Amendment rights, but I did so under an appropriate time, place, manner restriction. 11.765%

Test 1: Quick Review Question 4: What is the name of the test you would use to help the client who yelled “Kill the bitch!” The Clear and Present Danger test 100% The Patriot Games test The Threats of Violence test The Bad Tendency test

Test 1: Quick Review Question 5: What does the test ask you to determine? Whether the expression was intended to encourage, or likely to encourage the audience to kill the governor. 10.294% Whether the expression was intended to encourage, and likely to encourage the audience to kill the governor. 5.882% Whether the expression was intended to cause, and likely to cause the audience to kill the governor. 58.824% Whether the expression was intended to cause, or likely to cause the audience to kill the governor. 25%

Test 1: Quick Review Question 6: Which of the following is the strongest evidence against the intent element of the test? Your client has never threatened the life of a public official before. 17.647% Your client has threatened the lives of many public officials before, and nothing has come of it. 7.353% Your client provided no specific method for killing the governor. 20.588% Your client did not provide a meeting time or meeting place to arrange the assassination. 54.412%

Test 1: Quick Review Question 7: Which of the following is the strongest evidence against the likelihood element of the test? The crowd seemed amused by the comment, rather than aroused. 94.118% The M.C. was quickly able to recover the audience’s attention. 2.941% No one in the crowd was armed. 1.471% No one in the crowd had ever killed a governor before. 1.471%

Test 1: Quick Review Question 8: Should the school be punishing her son? Yes, it is his patriotic duty; failure to do so violates a legitimate state interest in preventing treason and terrorism. 0% No, the First Amendment guarantees that the state cannot compel speech, unless silence would violate a legitimate a state interest. 83.824% Yes, children do not receive the same amount of protection as adults under the First Amendment. 16.176% No, the Pledge of Allegiance is fascist and a little bit scary. 0%

Test 1: Quick Review Question 9: Should we be worried about the certification fee? Yes, protecting children is very important, so everyone will have to pay the certification fee. 1.471% Yes, we will have to abide by the new certification guidelines because agreements made prior to publication are always upheld. 5.882% No, the certification requirement will be overturned as unconstitutional because the media is not a finite resource, so it will be considered a prior restraint. 73.529% No, the certification requirement will be overturned as unconstitutional because the media’s duty to report fair and accurate information does not outweigh the media’s right to publish information. 19.118%

Test 1: Quick Review Question 10: Would you suggest the intern’s do the legal research? Yes, making interns suffer is fun. I had to suffer when I was an intern, and turnabout is fair play. 0% Yes, preparing for a meeting with lawyers is a good way to save time and money; not to mention it helps you make the most of your time with the lawyers. 85.294% No, having anyone other than a licensed attorney do legal research is not only dangerous, but illegal. 5.882% No, it may not be against any laws, but legal research is definitely something best left to the professionals. 8.824%

Test 1: Quick Review Question 11: LibGuide v. Textbook Average Score 28.57 points Seven Cs Clear and Concise Cogent and Convincing Complete Coverage Corrections

Final Project – What I Need Today Get in your groups (5 min.) How many groups? Pick a person to e-mail me (and the rest of your group) identifying your group

Final Project - Suggestions Hash out a rough schedule (who works late, whose up early, whose going out of town). Ask questions.

Test 2: The Media vs. The Judicial System Media v. Judiciary Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)

Adversaries? Most everything in our society is about competition. The media needs the judicial system – at least the people who work in the media do. The judicial system needs the media. It’s a tenuous relationship at best, though.

Pre-Trial Publicity Media is public enemy #1 to a fair trial. The American judicial system is adversarial. Strong defense Strong prosecutor/plaintiff Jury determines the truth Media offers another version of the truth. This often includes evidence not admissible at trial Evidence not admissible at trial cannot be used to determine guilt or liability in the jury room The best way to avoid that is to keep it from jurors entirely

Pre-Trial Publicity Not all information will bias a jury. Some will be presented in the courtroom. Some jurors will not be swayed by the media. Jury members are very rarely found to be biased by the media. Jury bias is usually discovered during voire dire. Each side is allowed to challenge and remove jurors. Some are “for cause.” Some are peremptory.

Pre-Trial Publicity Usually rampant bias resulting from the media is avoided by moving the trial (change of venue) or getting a new pool of jurors (change of venire). Prior restraint is usually not allowed, except for particularly sensitive information. Usually the restraint is put on trial participants (gag orders). Media restraints have to pass a balancing test Nature and extent of coverage Other options for mitigating damage How effective the order would be at mitigating damage

Trial Publicity Jurors may be sequestered to avoid jury bias during the trial. Admonitions also help avoid jury bias. Secrets of the human mind Directed Verdicts Media and the public generally have access to trials jury selections pre-trial hearings court records

Trial Publicity No state completely bans cameras in the courtroom, but several make it too difficult to be worthwhile. Judges can have cameras removed for certain parts of or for certain types of trials. Jury Interviews Protecting jurors Usually cannot question about deliberations Juror anonymity must be honored Restrictions must be narrowly tailored to serve an important public interest

Contempt Contempt is one of the few areas in the American system of government with no checks and balances Judge is usually the victim Usually directly At the very least indirectly Judge determines guilt Judge determines the punishment Contempt orders are limited by two things The First Amendment Due Process

Criminal Contempt NOT a contempt order stemming from action during a criminal case Punishes behavior Won’t necessarily result in imprisonment

Civil Contempt NOT a contempt order stemming from action during a civil case Compels behavior Can result in imprisonment

Appealing Contempt A judge may order a prior restraint and punish violation with a contempt order. Even after the prior restraint order is found unconstitutional, the contempt order may stand. A contempt order is lifted only under specific circumstances Contempt order is based on a “transparently” unconstitutional order. A good faith effort is made to appeal prior to violation. Balancing test is passed: good vs. harm caused by the violation.

Protecting Sources Anonymous sources are problematic: Anonymity v. Accountability Easy to retract anonymous statements Hard to point to for credibility But, anonymous sources are sometimes necessary. Protection from criminal action. Protection from adverse employment action. Protection from criminal activity.

Protecting Sources The judicial system may be interested to know who your anonymous source is. Criminal prosecution of the source Connections to criminals/tortfeasors Evidence for civil/criminal suits Investigative Journalist vs. Investigator “Free flow of information” vs. “fundamental function of government” Relevant to a specific investigation Demonstrated need

Protecting Sources Fun with “Demonstrated Need” Requested level of balance: No other possible source Supreme Court indication: No other probable source More recent lower courts: Not asked in bad faith; not harassing the journalist Fun with “Bad Faith” Journalist cited for contempt after failure to reveal a source that the prosecutors already knew about The Bush administration has severely expanded the definition of “good faith”

Protecting Sources Criminal Case Information sought is relevant Demonstrated need Compelling need Civil Case Matters whether journalist is a party to the suit The more removed the journalist … The need has to be greater The need has to be more compelling

Miscellany (as in miscellaneous, not the name of a law or a field of law) Don’t forget about statutory law. Search warrants pose their own problems. Cannot challenge prior to use. Only granted in rare cases. Revealing sources can cause problems, too. Have you made a promise? Have you made a contract? Will your actions cause harm? People get greater protection than information Element of confidentiality Greater risk of harm

Test 10 multiple choice worth 10 pts. each One short answer worth 30 pts. each This is practice for the project You get points for quality not quantity A clever writer can answer in one sentence Most correct answers are two sentences The best answer I’ve gotten was four sentences, the student got bonus points for going above and beyond The worst answer I’ve gotten was ½ page long Seven Cs

Test 3: Duty to Inform vs. Duty to Respect, Part I Reputation Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)

Quick Flashback What are the three types of restrictions a state actor can put on expression? Time, Place, Manner A journalist was removed from a press area by Secret Service after she handed the President a letter of protest. Was this action constitutional or unconstitutional? Did her removal qualify as a time restriction? A place restriction? A manner restriction?

Defamation Harm to someone’s reputation. Slander ~ spoken defamation Libel ~ published defamation What about television/radio? Can be re-accessed “Published” All journalism that harms someone’s reputation is considered libel.

Libel Criminal Libel Remember the purpose of criminal suits Punish violations of the law Almost completely gone Civil Libel Remember the purpose of civil suits Recover for damages caused by another Frequent problem Even if you win, the legal costs are high

Civil Suit Plaintiff v. Defendant Π v. Δ Π has the burden of proof Burden  Responsibility Proof  Satisfy all the elements of the tort Satisfy  Jury believes Elements  Actions/Inactions/Mental states/Results Δ has to raise doubt that Π has met the burden May refute claims May raise affirmative defenses

Parties to the Suit Any entity with the power to communicate can be a defendant. Not every entity with a reputation can be a plaintiff. People must be alive to be affected. Organizations must be affected as a whole, not on behalf of members. Government cannot sue, even if harmed.

Libel Elements Defamation Identification Publication Falsity Fault Personal Harm

Defamation Statements that expose a person “to hatred, ridicule, or contempt.” Defamatory Content Accusation of criminal activity is defamatory per se. Accusation of product inferiority defamatory only if malicious. Malice can be with intent to do harm. Malice can also be with reckless disregard for the truth. Criticisms of a person’s lifestyle or characteristics can be defamatory if they tend to inhibit personal contact.

Defamation (Cont.) Defamatory Content (Cont.) Communication indicating one is not deserving of respect is defamatory per se. Some courts offer relaxed standards for mistaken defamation: Innuendo Innocent construction

Identification Plaintiff must be identified as the subject of the defamation. Assuming Tammy is a licensed therapist, for which of these could she claim libel? Therapists are not real doctors. Tammy the head-shrinker can’t read. Tammy’s license is fraudulent. I saw Tammy out drinking last night. I saw Tammy dancing on the tables last night. Tammy’s new girlfriend is a socialist.

Publication The communication must be transmitted to a third-party. If a tree falls in a forest … Newspaper article Magazine article Internet article Blog after article Graffiti in a bathroom Insults in a locked diary Insults in an unlocked diary Idle chatter in a bar

Falsity Π must prove his/her/their version of the case is true, and not the published version. Protecting and informing the public outweighs the right to a good reputation. You can write a letter to the editor of a local paper (published)saying not to trick-or-treat at 1357 Made-Up Avenue (identified) because the resident is a child molester (defamed)… IF IT IS TRUE.

Fault There must have been some error that caused the publishing of the false information. It matters whether Π is a private or public figure. Private person Negligently false Failure to use reasonable care Public person Malice: intent to do harm Malice: reckless disregard for the truth.

Fault (Cont.) Public Person vs. Public Official Decision making for the people Decision making for the state Public Official Knowingly false Reckless disregard for the truth. Limited Public Person Public controversy Visible career

Personal Harm To be continued …

Test 3: Duty to Inform vs. Duty to Respect, Part II Reputation Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)

Personal Harm An individual who has been (1) identified in a statement that is (2) defamatory, (3) published, and (4) false (5) to the requisite degree, still might lose a libel suit. Freedom of expression outweighs the right to not be embarrassed. Freedom of expression does not outweigh the right to a good reputation. The difference is suffering some sort of harm.

A Related Side Note The American civil law suit is based on the notion that everyone has a price. There is a certain amount of money that can make up for any loss you suffer. Money can fill the void created for a piano virtuoso who loses his hand. Money can replace the blown out knee of a basketball star. Money can compensate for the loss of a child, spouse, aunt, uncle, sibling.

Personal Harm (Cont.) And money is what we give a plaintiff whose reputation has been damaged by libelous transmission. The total amount of money awarded increases as the degree of harm increases. Money given to “put a situation right again” is called “monetary damages,” “money damages,” or just plain “damages.”

Damages The amount of damages increases as the amount of harm increases. The amount of proof needed also increases as the amount of damages increases.

Defense Plaintiff must prove all of the preceding elements. Defendant can refute any or all of the elements. Refute IS NOT disprove. Defendant may concede every element. If the plaintiff has satisfied every element, the defendant can still launch “affirmative defenses.” Excuses/Exceptions/Explanations Burden of proof temporarily shifts

Factual Disputes Defendant didn’t make the statement. Statement was not about plaintiff. No one heard/read the statement. Statement was true. Defendant exercised proper care. Plaintiff was not harmed.

Affirmative Defenses Statute of Limitations Not portrayed as factual Opinion Exaggeration Figurative language Totality of the circumstances Privilege Absolute Privilege Qualified Privilege

Absolute Privilege Government Official Acting in Official Capacity Consent Cannot recover for something you agreed to. Cannot consent to illegal activity. Broadcasting Political Debates Can be sued for publishing someone else’s libelous communication. Privilege is very specific Live broadcast Political broadcast

Qualified Privilege Reporter’s Privilege A public official made the statement. Statement is accurately attributed to that official. Story as a whole is fair and accurate. Statement was included without intent to harm. Neutral Reportage Statement is newsworthy. Statement is related to public controversy. Statement is accurately attributed to an involved party. Story as a whole is fair and accurate. Statement was included without intent to harm.

Qualified Privilege (Cont.) Message of Mutual Interest Good faith sharing of helpful information. Intra-organizational discussion. Must be among people with common interests that involve the libelous statement. Self Defense Statement intended to combat an attack on Δ’s reputation. News media may use this defense if their media has been used to attack another’s reputation.

SLAPP Suits Strategic Lawsuits Against Public Participation Libel suit brought to discourage open discourse. Usually brought to keep trade or government secrets secret. Intent is not to recover for harm done, but to intimidate those who speak out against corruption. Rarely successful. Still very expensive. Should be countered with a suit for abuse of the legal system.

An Ounce of Prevention Respond to complaints. Most people just want to be listened to. Libel, in particular, is about respect  disrespecting them twice is not helpful. Publish retractions. If a story is wrong – fix it. This minimizes the possibility of a lawsuit. Also minimizes the damage done, if a lawsuit happens anyway.

Test 3: Duty to Inform vs. Duty to Respect, Part III Privacy Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)

Related Side Note Legal Elasticity Stretch to fit desired outcome Interpretation Privacy is a very elastic right. Starts with penumbrae. First Amendment – choose religious beliefs/practices Third Amendment – refuse to quarter soldiers Fourth Amendment – refuse unreasonable search/seizure Fifth Amendment – protect against self-incrimination Ninth Amendment – establish un-enumerated rights Protects rights from abortion to birth control to sodomy to voting.

Privacy from Media Obviously, the media has a duty to find and report information. There is a question as to how hard the media should look. The answer lies in a discussion of privacy. Behind Closed Doors Conference room doors Bedroom doors Bathroom doors Hospital room doors

Intimate Information Publication would be highly offensive to a reasonable person Not previously revealed Beyond embarrassing Shocks the conscience Not of legitimate concern to the public “The American people have a funny way of deciding on their own what is and what is not their business.” – Michael J. Fox as A.J. in Aaron Sorkin’sThe American President Exception is advancing a state interest of the highest order.

Invasion of Privacy Intrusion Focuses on news gathering Mainly surveillance Cannot intrude on things happening in public Can harass or stalk someone in public Trespass Still focusing on news gathering Physical invasion of privacy Keyword: “Physical” Profiting from someone else’s trespass is not trespass Cannot trespass on public property

False Light Highly Offensive Publication Distorted Truth Twisting what actually happened Exaggerating what actually happened Reporting only part of what actually happened Fictionalization Adding false things to what actually happened Embellishing what actually happened Must be more than minor adjustments Published with malice Knowingly false Reckless regard for the truth

Appropriation Unauthorized commercial use You have a right to protect your image. You have a right to control use of your name/likeness. Keyword: “Commercial” rather than newsworthy Keyword: “Unauthorized” as in without consent May suffer economic loss Usually get paid for endorsements Could miss other opportunities May suffer harm to reputation Inferior product Changes the plaintiff’s image

Intentional Infliction of Emotional Distress Outrageous conduct Extreme in degree Beyond all possible bounds of decency Atrocious, intolerable, uncivilized Causes mental anguish Psychologically upsetting Psycho-somatic reactions can increase damages Physical harm not necessary Public figures held to extraordinary standard

Physical Harm There must be a causal relationship between the physical harm and the communication. Actual Cause No other external motivation “But For” Proximate Cause Logical chain reaction Foreseeability Automatically satisfied for intentionally inciting the harm. Must be argued for negligently inciting the harm.

Test 4: Speech & Profit, Part I Copyright Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)

“C” is for Copyright Constitutional Right “Writings” Legalese “original works” “of authorship” “fixed in any tangible medium” Control re-creation of creative works. Control publishing of creative works. Control distribution of creative works. Censorship    Commercialism

“C” is for Copyright (Cont.) Creative expression protected. Cannot copyright facts. Cannot copyright generic ideas. Cannot copyright generic concepts. Can copyright a specific compilation Can copyright a derivative of a copyrighted work If you hold the copyright Or have the permission of the holder

Copyright Holder Author is the holder of a copyright Legalese Creator Joint Creators Employer of Creator Prepared by employee Within the scope of employment Commissioner of creation Government cannot hold a copyright

Copyright Protection Length of protection Personal: Life of the author + 70 years Corporate: The shorter of 120 years from creation or 95 years from publication Notice Suggestion (not requirement) ©, “Copyright,” “Copr.” Year of first publication Name of holder Registration/Deposit Suggestion (not requirement) Copyright form $45 fee Copy of the work (two if published)

Copyright Protection (Cont.) Type of protection Distribution: only the holder can publish, sell, loan, or rent the copyrighted material prior to the “first sale” Display: the holder has absolute power over whether and when a copyrighted work can be shown publicly Performance: the holder may sell performance rights, performance licenses, and must comply with compulsory license requests Moral Rights: the holder has a right to attribution and preservation of artistic integrity, as well as a right to profit from the copyrighted work

Copyright Infringement Π holds copyright Material in question is substantially similar to Π’s Δ had access Δ violated Π’s holder rights Δ can be held liable for helping another violate those rights, or profiting from another’s violations Δ cannot be held liable for unknown transmission or temporary storage of an infringement

Fair Use of Copyrighted Material Productive Use as Part of an Original Work News/Commentary Parody Education Nature of the Copyrighted Work Length – Availability Fact/Fiction – Artistry/Effort Quantity + Quality = Substantiality Quotes 60% of the Copyrighted Material Hits all the Highlights Summarizes the Entire Piece Is it still necessary to purchase the original?

Non-Copyrighted Material Misappropriation/Piracy Unauthorized taking of the benefit of someone else’s work Trademark Infringement Must have a trademark Established through distinct, recognizable use ™ Registered with the federal government ® Use must not be protected by the First Amendment Use must dilute the distinction of the trademark

Test 4: Speech & Profit, Part II Advertising Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)

What’s more commercial than money? No discussion about regulating commercial speech would be complete without mentioning the use of monetary images in media, so here it is. Money appearing in media must be In black & white And not accurately sized

Commercial Speech Doctrine Commercial speech does “no more than propose a commercial transaction”; it is “related solely to the economic interests of the speaker and its audience.” Must be accurate Must advertise a lawful good/service Regulation is unconstitutional if it does not serve a legitimate state interest. Health/Safety Moral Integrity Aesthetic Quality Regulation is unconstitutional if it does not directly serve the legitimate state interest. Regulation is unconstitutional if it is not narrowly drawn.

Commercial Use of Personal Information Personal information is very useful to advertisers Where you live Regional information Contact information Where you shop Which stores Online vs. In-store What you buy What advertising you respond to How much disposable income you have Who lives in your household Who makes the decisions

Commercial Use of Personal Information (Cont.) We give this information knowingly all the time Birthdates provide a lot of demographic information Your e-mail address can say a lot about you We give this information unknowingly, too IP information on web sites Caller ID gives two area codes Paying with a credit/debit card The collection (knowingly and not) and use of this information is regulated.

Principles of Fair Information Practices Information practices must be disclosed When was the last time you asked about a privacy policy on the phone? When was the last time you read the privacy policy on a statement you were mailed? When was the last time you clicked through an online privacy policy? Consumers must be given a choice This does not give consumers line-item veto Comply or you can’t use this is a choice

Fair Information Practices (Cont.) Consumers must be given access to their own information They do not have to be told they have access They do not have to be provided easy access Information must be stored with a reasonable measure of security This is part of the reason access does not have to be easy “Reasonable” is a term of art

Federal Trade Commission (FTC) Original jurisdiction: protect competitors from unfair/deceptive claims in advertising Additional jurisdiction: protect consumers from unfair/deceptive claims in advertising What is unfair? Likely to Cause Substantial Injury Injury Unavoidable Within Reason Potential Harm Outweighs Potential Benefits What is deceptive? Likely to Mislead A Reasonable Consumer About a Material Matter

FTC (Cont.) Expressly False Claims Blatantly Untrue Plain Meaning is Obviously a Lie Implicitly False Claims No Reasonable Basis for the Claim Evidence Misrepresented as Proof Unique Demonstration Portrayed as Common Result Omission/Dilution of Necessary Qualifiers Exaggeration of Inconsequential Facts as Consequential

FTC (Cont.) Exception for “puffery” Not a Serious Claim Not a Claim of Fact Experts v. Celebrities v. Portrayals Is Paris Hilton an “expert” in perfume? Is it okay for an actor to pretend to have a headache in a pain reliever commercial? Is it okay for an actor to pretend to be a doctor in a pain reliever commercial? Is it okay for an actor to pretend to have found relief in a pain reliever commercial? Is it okay for an actor to pretend to testify to that relief?

FTC (Cont.) Preventative Measures Staff Opinion Letters Advisory Opinions Industry Guides Rules Remedial Measures Consent Decrees Cease-and-Desist Orders Injunctions Affirmative Disclosure Corrective Advertising

Racketeer Influenced and Corrupt Organizations (RICO) Act Regulates interstate enterprises Usually covers fraudulent mail or phone use Deceptive advertising can rise to level of fraud under RICO RICO is a major threat to Πs Δ can recover three types of damages Consumers have standing to sue

Broadcast Advertising Stations can choose how much advertising to show – the market will regulate itself But persons 12 and under Cannot distinguish between commercials and programs Cannot understand persuasive intent/tactics So, programming targeted to this group May only broadcast 10.5 minutes of commercials per hour of programming on weekends May only broadcast 12 minutes of commercial s per hour of programming on weekdays Commercial web sites can only be displayed on screen during commercial time

Broadcast Advertising (Cont.) Cannot advertise tobacco products Can advertise alcohol; most do not advertise liquor Can advertise prescription drugs if information is accurate risks and benefits are portrayed evenly no material facts are omitted access to product label information is provided

Test 4: Speech & Profit, Part III Advertising Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)

Advertising Contests: The Facts America was founded by Puritans, and is largely still run on Puritanical principles. One of these principles is that gambling is wrong. Advertising something that is illegal is wrong. Gambling, by and large, is not illegal. People love a game of chance. It is a good idea to use things people love to sell them things. Advertisers frequently Use contests as promotions. Promote contests.

Advertising Contests: Ads for Gambling Institutions Until the late ‘80s it was illegal to advertise any kind of gambling because it contributed to the delinquency of the population. Now it is okay to advertise a gambling institution if that type of gambling is permissible in the state where the ad is carried. Regulations that prohibit the advertising of a gambling institution are subject to the commercial speech doctrine.

Advertising Contests: Ads for Lotteries A lottery is a specific type of gambling. A game of strictly luck which a player buys into for the opportunity to win a prize. Win by chance Consideration given by participant Prize offered Advertisements for a lottery are subject to the same regulations as advertisements for gambling institutions.

Advertising Contests: Contests as Promotions Previously we were talking about gambling as the subject of an advertisement. Now we are shifting gears to gambling as a type of advertisement. The FTC says these contests cannot be lotteries. Win by chance Consideration given by participant Prize offered Failure of any of the three elements makes the contest not a lottery.

Advertising Contests: Contests as Promotions (Cont.) FCC also regulates contests used as promotions. Must reveal Who is eligible to win Nature & value of the prizes How to enter How to win Dates of the contest Must comply with the information revealed

Securities Transactions First Amendment grants the right to disperse information … with certain exceptions. First Amendment grants the right to refrain from giving information … also with certain exceptions. One of those exceptions is the requirement of publicly traded companies to disclose financial information. Periodic reports Press releases Annual stockholders’ meetings Federal registration with the Securities and Exchange Commission (SEC) Proxy statements (disclosure of executive compensation) Recorded sales, purchases, options

Securities Transactions (Cont.) Insider trading is not illegal. Insider trading without proper public communication is illegal. Based on private information that should be public Done without proper disclosure Calculated to reach the securities marketplace Through recognized channels In a timely manner Providing a reasonable reaction time

Securities Transactions (Cont.) These disclosures must be accurate. More importantly, though, they must NOT be manipulative or deceptive. Fraud is a particular type of deception and manipulation. Knew the information was inaccurate False Incomplete Inaccurate information material to the decision made Intended for the inaccurate information to deceive or manipulate the decision-maker

Test 4: Speech & Profit, Part IV Pornography Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)

Sex Sells: The Facts America was founded by Puritans, and is largely still run on Puritanical principles. One of those principles is that the naked human body is bad. Interactive human bodies are worse. Displaying naked human bodies is bad. We talk about it here for two reasons. The given reason: artistic expression The actual reason: $ex $ell$

Sex Sells: The Distinctions Puritanism being what it is, though, we can only allow so much sex to be sold. Thus, under the given reason, there is a difference between obscenity, pornography, and indecency. Obscenity: appeals only to prurient interest Pornography: sexually explicit material that may be obscene or indecent Indecency: appeals to prurient interest but is protected as some form of political, artistic or educational expression (that is commercially viable)

Sex Sells: Obscenity Obscene material is not covered under the First Amendment. The sole purpose of obscene material is to make people think about and want to have sex. No other message of any social value In any section of the work This standard is different in different areas of the country because it is measured against “the average person, applying contemporary community standards.” Obscene material is patently offensive to any reasonable person.

Sex Sells: Minors & Minorities Material that might not be obscene if it contained adults could be obscene if it contains children. Material that might not be obscene if it is marketed toward adults could be obscene if it is marketed toward children. Material that might not be obscene if it were marketed to the population at large might not be obscene if it is marketed only to an “atypical” or “deviant” population.

Sex Sells: Punishing the Publisher Making and publishing obscene works is a punishable offense. If you have come into possession of material that is obscene, that is not a punishable offense (except for that involving minors). The focus of obscenity regulations is on public communication of the obscene material.

Sex Sells: Protecting the Publisher Prior restraint only allowable if: Specific amount of time. Short amount of time. Judicial review is expeditious. Censor bears the legal burden. Any administrative ruling on obscenity can be challenged in the courts.

Sex Sells: Indecency Indecent material is protected, but can be regulated. Regulations are analyzed according to Technological aspects of the medium used to publish the indecent material The effort required to observe the indecent material (or the likelihood of accidental encounters with the indecent material)

Sex Sells: Indecency in the Media Print media (including the Internet) requires a person to be able to read or at least purchase the material, so it is least strictly regulated. Anyone can turn on the television or radio at any time, so it is most heavily regulated, and “indecent” is most strictly defined. Television or radio which requires a special subscription is less heavily regulated. The more special the subscription, the less heavily regulated.

Sex Sells: Indecency in the Media (Cont.) Indecent broadcasts are subject to time and manner restrictions. Time: restrictions are heavier when children are more likely to be viewing or listening. Manner: restrictions are lighter as the non-prurient value increases. All forms of media depend on a certain amount of policing in the home. Print media and the Internet the most. Theatrical presentations a close second. Broadcast media increasingly more.

Sex Sells: Familial Regulations Once indecent print media (including the Internet) is brought into the home, responsibility for controlling access rests with the guardians. Ratings systems for movies are designed to promote family rules about viewing films. Other theatrical events, such as plays and concerts are also regulated primarily by family rules. Advertisements tend to indicate whether and to what extent a performance will be indecent. Broadcast media has started to implement a ratings system to promote family rules about television watching.

Test 5: Politics, Part I Chapter 12 Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)

Media Law First Amendment Rights

Empfohlen

Empfohlen

Weitere ähnliche Inhalte

Was ist angesagt?

Was ist angesagt? (8)

Andere mochten auch

Andere mochten auch (20)

Ähnlich wie Media Law First Amendment Rights

Ähnlich wie Media Law First Amendment Rights (14)

Media Law First Amendment Rights