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Exam II Notes, Chapters 6-11

by: Jamie Finkelstein

Exam II Notes, Chapters 6-11 SMPA 2173

Jamie Finkelstein

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Chapters 6-11 from The Law of Journalism and Mass Communication
Media Law
Will Youmans
Media, Law, political science, journalism
75 ?




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This 29 page Bundle was uploaded by Jamie Finkelstein on Tuesday April 5, 2016. The Bundle belongs to SMPA 2173 at George Washington University taught by Will Youmans in Spring2015. Since its upload, it has received 28 views. For similar materials see Media Law in Journalism and Mass Communications at George Washington University.

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MEDIA LAW EXAM II NOTES Feb 16/18 – Chapter 6 Privacy: Limiting Journalists’ Access to Personal Information and Places  Sources of privacy protection o U.S. Constitution – the word “privacy” is not in the Constitution, but SCOTUS has said it protects certain privacy rights.  Yet, City of Ontario v. Quon - SCOTUS ruled in 2010 that government employers may see public employee’s texts sent and received on government-issued equipment  The case: an Ontario, Calif. Police officer used a department- issued pager to communicate with fellow officers. The city audited the pagers and found one officer’s texts to his wife and mistress with explicit content. The officer claimed the city violated his reasonable expectation of privacy. Supreme Court voted in favor of the city. Limited privacy rights of public employees.  When you’re a government employee, you have a different standing than private – because Quon was government, privacy standards didn’t apply o Federal and state statutes – most of these laws stop government agencies from giving out confidential information without the individual’s permission  Video privacy protection act – 1980s, there was a controversial Supreme Court justice nomination. Everyone was trying to find dirt on him to make a spectacle of the nomination. Someone found his records of the videos he rented. Congress passed the VPPA which made it a violation of federal law for someone’s DVD records to be released without written permission o Contracts  Online services user terms – current federal and state privacy laws don’t sufficiently protect American consumers, so the burden of understand websites’ privacy policies is with online users who must affirmatively try to ensure their own privacy  Facebook’s privacy policy – requires users to opt out if they want privacy. FB makes it extra complicated to navigate its policies and maintain them – people’s private info only becomes private if users manually make them private o Tort law – in civil law, a tort is an injury one person or entity inflicts on another  Constitutional basis th o 4 amendment  the right of the people…against unreasonable searches and seizures,…but upon probable cause… o 14 amendment, section 1  nor shall any State deprive any person of life, liberty, or property, without due process of law  Privacy tort law’s emergence 1 o Warren and Brandeis – 1890 (Muckraking journalism was happening at the time, alleged negative things against officials) Harvard Law Review article  Two lawyers who put privacy on the map in 1890 when they published “The Right to Privacy,” which argued that human dignity required protecting individual privacy o Prosser’s 1960 law review article – William Prosser, a torts expert and law school dean, published an article trying to clarify the matter of privacy (still be debated). He suggested that privacy law could be divided into false light, appropriation, intrusion and private facts  Privacy Tort Law – not all of these are available in all states (have not been federalized) o False light – intentionally or recklessly publicizing false information a reasonable person would find highly offensive o Appropriation – using another’s name or likeness for advertising or other commercial purposes without permission o Intrusion – intentionally intruding on another’s solitude or seclusion o Private facts – publicizing private, embarrassing information  False light o Definition: a privacy tort that involves making a person seem in the public eye to be someone he or she is not. Several states do not allow false light suits. o Like libel but different? – Not all false statements are defamatory. Some false statements may make the person look better, not worse. o 34 states allow o Does it encourage self-censorship? o Plaintiff must prove  Publication – the material was published  Identification – the plaintiff was identified  Falsity – the published material was false or created a false impression  Highly offensive to a reasonable person – the statements or pictures put the plaintiff in a false light that would be highly offensive to a reasonable person  Actual malice, or perhaps only negligence – the defendant knew the material was false or recklessly disregarded its falsity  Time Inc. v. Hill – in 1967, seven Hill family members sued Time, Inc., published of Life magazine, for a story based on the family’s experience of being held hostage by escaped convicts. Essentially, the article created the impression that they were treated extremely poorly, and that turned into a book, and a play, al increasingly dramatic. Implying that they had been treated badly put the family in a false light. SCOTUS ruled that since the subject was of public interest, the Hills could win only if they proved actual malice.  Cantrell v. Forest City Publishing Co. – in 1974, the Court again said private plaintiffs had to prove actual malice to win a false light case. A photographer visited a woman 2 (Cantrell) whose husband died in an accident to document how her life had changed after his death. SCOTUS upheld a jury verdict in the Cantrells’ favor because the trial judge had told the jury actual malice was party of the plaintiff’s false light case,  Gertz v. Robert Welch, Inc. – courts in at least five states and DC have applied Gertz to false light cases. These courts would require only that a private individual prove negligence in a false light, not malice o Defense must prove:  Did the plaintiff prove all of the elements? If not, defense wins  If they proved all elements, look into libel arguments (fair comment and criticism, neutral reportage, etc.)  Appropriation – using a person’s name, picture, likeness, voice or identity for commercial or trade purposes without permission o Commercialization – applying to someone who wants to remain private and unknown except to family and friends. Using this person’s name, picture, likeness or voice for advertising or other commercial purposes without permission is commercialization. More applicable to private citizens. It is invading the person’s privacy, causing emotional distress o Right of publicity – applying to someone who wants to be known far and wide, to be a celebrity—a musician, athlete, move start, TV personality. Using this person’s name, picture, likeness, voice, identity—or a look- alike or sound-alike—for advertising or other commercial purposes without permission invaded this person’s right of publicity. More applicable to public citizens. It diminishes the person’s economic value. o First appropriation statute  Abigail Roberson – pictures were used without her permission for a flower company. She sued and she lost; controversial because for a public just getting into mass media, there was a much larger sense of privacy. The rules weren’t really well formed, so there wasn’t much legal basis for her to sue on. Inspired the first appropriation law  New York state legislature, 1903 – adopted the country’s first appropriation law o First common law recognition of appropriation  Paulo Pavesich – Life insurance company used his image in an ad without paying him. He sued them and won on the basis of commercialization – first common law use of commercialization  Georgia Supreme Court, 1905 o First right of publicity suits: baseball cards. Baseball players would sue on the basis of right of publicity o Plaintiff must prove:  Wide publication – different from libel because a third party is involved; has to be sent to more than one person  Identification – has to clearly be about this person 3  Plaintiff’s name used o A pseudonym/stage name  Or plaintiff’s likeness o Look-alikes o Prominent disclaimer? – if you’re imitating someone, you have to actually say that you’re doing it  Or plaintiff’s voice used o E.g. a sound-alike o Prominent disclaimer? – if you’re imitating someone, you have to actually say that you’re doing it  Or plaintiff’s identity used o Vanna White case – game-show hostess Vanna White sued Samsung Electrionics for appropriation when the company ran a series of ads showing its products in futuristic settings – one of the ads appropriated White’s identity o “Cheers” case – extended Vanna case when two actors from the TV show, Cheers, filed suit against a company that wanted to install sets very similar to that of Cheers. The actors didn’t give consent, and the company did the sets anyway without the faces. A federal appellate court said that figures sufficiently resembled the identities of the actors. Just because they’re characters were fictional, they still had the right to exploit their likeness  Damages – may be awarded based on two injuries: for injured feelings, or for unwillingly helping another gain financially o Appropriation defenses  Newsworthiness – the defense most often used against appropriation suits.  Zacchini case – Hugo Zacchini was a human cannonball. His act was shown on television and Zacchini sued on the basis that people are less likely to attend the show in person if they can see it on TV. The Court ruled in favor of Zacchini because of his financial reasons, not his privacy  Public domain – names and associated information may be widely available to the public and therefore cannot be protected by right publicity  First Amendment  Aristic relevance test or Rogers test – used to resolve the kind of conflict relevant to art (ex- Pitbull using Lindsay Lohan in a line in his song…lol) o Rogers v. Grimaldi – Italian movie director Frederico Fellini made a film, “Ginger and Fred,” which was a reference to another set of films. Ginger Rogers sued, claiming the movie title infringed on her right to use her name for commercial purposes. Applying the 4 artistic relevance test, the court said Rogers couldn’t win unless the move title had no artistic relevance to the film (they were related, and Rogers lost).  Transformativeness test – some courts use this instead of Rogers to decide whether a challenged work has First Amendment protection against a right of publicity suit o “When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass.” o If a creator has transformed a person’s name, picture, likeness, voice or identity for artistic purposes, the person can’t win a right-of-publicity case  Predominance use test – in a right-of-publicity lawsuit, a test to determine whether the defendant used the plaintiff’s name or picture more for commercial purposes or protected expression – is a person’s name or pictured used for commercial purposes or substantive expression?  Ads for the mass medium – mass media may run advertisements for themselves that use names and likenesses they have included in their coverage (without permission from those they mention)  Consent – the best argument is having permission – oral consent can be a defense but having something in writing is primetime  Incidental use – if the use of a person’s name or likeness may be incidental to a work’s primary purpose, that person can sue. For example, if someone if featured for 6 seconds in a 3-minute video, they can still sue because they were necessary for the work to be successful  Intrusion o Definition – the act of intruding. TY DICTIONARY.COM!! o Intrusion upon seclusion – physically or technologically disturbing another’s reasonable expectation of privacy  Intrusion by Trespass – intentionally entering private property without permission o Plaintiff’s case  Reasonable expectation of privacy  Intentional intrusion on the privacy  Intrusion is highly offensive to a reasonable person o Defenses  Consent  False pretenses? – a journalist who cannot get permission to be on private property might lie to obtain consent using false pretenses; most courts say reporters may use deceit to gain entry (ex – a food critic entering a restaurant as a regular person)  Newsworthiness – rarely a defense to an intrusion suit based on trespassing; rare circumstances would be acceptable, like when 5 the story discusses public concerns, which take precedent over privacy  Private facts o Definition – the tort under which media are sued for publishing highly embarrassing private information that is not newsworthy or lawfully obtained from a public record. o Plaintiff’s case  Publicizing – a private facts plaintiff must prove that the defendant gave publicity to the intimate information  Private, intimate facts  Highly embarrassing to a reasonable person  NOT of legitimate concern to the public – even if intimate facts were private before being published, a plaintiff cannot win a private facts lawsuit if the information is newsworthy or of legitimate public concern  Newsworthiness? - if newsworthy, the private facts can’t be the basis of a successful private facts suit o First Amendment defense  Public records? – a government record, particularly one that is publicly available  B.J.F v. Florida Star – SCOTUS held that the First Amendment protected a newspaper that published the name of a rape victim, reasoning that violent crime is a publicly significant topic. In 1983, a woman (BFJ), reported that she had been robbed/sexually assaulted. Her name was put in a public record. SCOTUS ended up saying that three factors influenced the decision: o The government itself supplied the information o The state law forbidding names from being published had no exceptions o The sate law applied only to the media, allowing individuals or non-media groups to disseminate a victim’s name  Under these circumstances, the Court said the right to a free press outweighed the state’s interest in preventing publication of BFJ’s name  Cox Broadcasting Corp. v. Cohn – the Court said for the first time that truthful information lawfully obtained from a public record could not the basis of a private facts lawsuit. o Identity of rape victim in 1971 was published – SCOTUS ruled in fafor or the television broadcast  Truth? Supreme Court: where a newspaper publishes truthful information, which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order…  Lawfully obtained - truthful information lawfully obtained from a public record could not the basis of a private facts lawsuit 6  Passage of time? – if you’re no longer relevant, you can’t sue. But if the public is still interested, you can Appropriation False Intrusion Private Facts Light Publication Identification Falsity Highly offensive to a reasonable person Actual malice, or perhaps only negligence Exercises: 1. In November 2005, the SEC filed a civil complaint against Ronald Durando and Gustave Dotoli, shareholders and officers of, alleging that they had artificially inflated the value of a company's stock by engaging in "false publicity," and then sold the stock to the public for large profits -- a so-called "pump and dump market manipulation scheme," according to the opinion. When the SEC files a civil complaint against someone, they are not arrested on criminal charges. The front page of a local paper, The Nutley Sun, read "Local men arrested in 'pump and dump' scheme, page 11." As the opinion states, neither Durando nor Dotoli were named in the teaser. The article ran on December 8, 2005, and the next day the paper was alerted to the error -- Dotoli and Durando were not arrested -- and asked to file a retraction. After internal deliberations, The Nutley Sun ran a front page retraction on December 22. Dotoli and Durando sue. 2. Formula one boss Max Mosley sued a tabloid magazine that accused him of taking part in a "sick Nazi orgy." It printed pictures and published video of him indulging in a five-hour sadomasochistic sex session with prostitutes in a Chelsea apartment. He denies there was a Nazi element to those evening’s festivities. 3. In January 2009, French photographer Patrick Cariou alleged that artist Richard Prince used images from his book, Yes Rasta (2000, Powerhouse), into works for a 2008 show at Gagosian in New York, without permission. In court, Prince testified that he "didn't really have a message." 4. A stripper sued ABC for publishing private facts about her when the television show 20/20 aired a program about the allegedly illegal activities of several persons associated with the strip bar where she worked. The plaintiff appeared in a few shots of the TV program dancing nude in the background. 5. The Borings sued Google after Google's Street View car drove down their private road and captured the Boring's house and pool on its camera, which was then displayed in Google's Street View feature. 7 6. Jeff Smith had been held hostage by his friend and had been forced to disrobe in an effort to prevent his escape. The friend shot himself and a frightened Jeff rushed from the building wearing only a dishtowel clutched against the front of his body. A news photographer from the Daily Bugle captured the photo of Smith, who was in a hallway of his apartment building, and it ran on the front page.  Cases for study o City of Ontario v. Quon – 2010  Facts: Employees of the City of Ontario, Cali. Police department filed suit against the police department, city, chief of police, and an internal affairs officer, alleging Fourth Amendment violations in relation to the police department’s review of text messages made by an employee on a city issued text-message pager.  Issue: Does a city employee have a reasonable expectation of privacy in text messages transmitted on his city-issued pager when the police department has no official privacy policy for the pagers? Did the Ninth Circuit contravene Supreme Court precedent by analyzing whether the police department could have used “less intrusive methods” of reviewing text messages?  Rule of Law: Is the privacy of the messages protected by the ban on “unreasonable search and seizures” found in the Fourth Amendment?  Analysis: Even assuming the Mr. Quon had a reasonable expectation of privacy in his text messages, the city’s search was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. SCOTUS rejected the Ninth Circuit’s “least intrusive” means approach to the issue.  Conclusion: SCOTUS concluded that the City of Ontario did not violate its employees’ Fourth Amendment rights because the city’s search of Mr. Quon’s text messages was reasonable. o United States v. Jones – 2012 – expanded privacy protection as its relates to unreasonable search and seizures  Facts: Respondent Jones was an owner and operator of a nightclub and came under suspicion of narcotics trafficking. Based on info gathered, police were granted a warrant authorizing the use of a GPS tracking device on the Jeep registered to Jones’ wife, but failed to comply with the warrant’s deadline. They installed it anyway. The government ultimately obtained an indictment against Jones, which included charges of conspiracy to distribute cocaine.  Issue: Does the attachment of a GPS tracking device to a vehicle constitute a search and seizure within the meaning of the Fourth Amendment?  Rule of Law: The government’s installation and use of a GPS device to track the vehicle’s movement constituted a “search.” 8  Analysis: The Katz “reasonable expectation of privacy” standard added to this understanding. Here, the police physically encroached on a protected area to gather information.  Conclusion: SCOTUS unanimously held that physically mounting a GPS transmitter on a car amounts to a search and violates the Fourth Amendment.  If someone follows you in a car, it’s creepy. But from a legal standpoint, its legal Feb 23/25 – Chapter 7 Emotional Distress and Physical Harm: More Media Torts  Emotional distress – serious mental anguish; it’s a lot more difficult to measure/see emotional trauma and therefore many cases are not successful o Frightened or extremely anxious o Intentional infliction of emotional distress o Negligent infliction of emotional distress  History of emotional distress tort o Firth, courts did not recognize the tort – mental illness was widely unstudied o Then, only if physical injury o Later, perhaps if physical symptom + emotional distress o Now, no physical injury needed if defendant’s action was outrageous o Also, if another tort caused emotional distress  Intentional infliction of emotional distress (IIED) – extreme outrageous intentional or reckless conduct causing plaintiff severe emotional harm; public official and public figure plaintiff must show actual malice on defendant’s part o Plaintiff’s case  Defendant’s intentional or reckless conduct:  Was extreme and outrageous  Causing plaintiff’s severe emotional distress  And defendant acted with actual malice (if plaintiff if public person) o Defense: no defense available  Outrageous conduct – examples: digging up the child’s skull on television; arrested Eran Best and showing her arrest on “Female Forces” without consent o Beyond the bounds of decency tolerated in civilized society  “In order to make out an IIED claim the ‘recitation of the facts to an average member of the community [should] arouse his resentment against the [defendant], and lead him to exclaim, ‘Outrageous!’” (Trager 283)  Intentional or reckless action o Defendant’s action need not be deliberate o A reasonable person would know actions could cause emotional distress o Example: the police officers in California who photographed/sent out pictures of a decapitated and made it viral without family’s consent  Public plaintiff o Public officials and public figures also must prove actual malice 9 o Hustler Magazine v. Falwell – reaffirmed the Sullivan case that required proof of actual malice; Larry Flynt published what he claimed was a parody of a Campari advertising campaign, which published ads in which celebrities described their “first time.” Reverend Jerry Falwell was portrayed as a hypocrite for engaging in illegal activities.  Falwell sued for libel and claimed inflicted emotional distress and was granted compensatory damages, but it was reversed by the Supreme Court which said that, as a satire, the magazine’s Campari ad was protected by the Constitution o 23 years after the Fallwell decision, the Supreme Court ruled that an IIED claim infringed the First Amendment again  Snyder v. Phelps – protestors from Westboro Baptist Church in Kansas picketed the funeral of a Marine killed in action in Iraq by holding up signs that were anti-USA, anti-soldiers, etc. The soldier’s father sued for IIED, claiming that the signs were directed at him. The U.S. Court of Appeals and the Supreme Court held that because the signs were related to public concern matters, the First Amendment protected them.  Enabled a law that forbid protests two hours before or after a military funeral and demonstrations closer than 300 feet from such funerals  Parody vs. satire o Parody – the copy-righted work is the target o Satire – the copyrighted work is merely used to poke fun at another target o Supreme Court:  “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’ imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”  Negligent infliction of emotional distress – owing a duty to a plaintiff, breaching that duty and causing the plaintiff severe emotional harm o Plaintiff’s case  The defendant had a duty to use due care – defendant should have foreseen that negligence could cause harm to the person or people to whom he or she owned a duty  The defendant negligently breached that duty  The breach caused the plaintiff’s injury  The breach was the proximate cause of the plaintiff’s severe emotional distress  Cause-in-fact – that defendant’s actions were the direct reason the plaintiff was emotionally harmed  Foreseeability – proof that the defendant acted negligently and that it was reasonably foreseeable such conduct would cause the plaintiff severe emotional distress (ex. – unsuccessfully suing a video game for inspiring students to shoot up their school) o No defense available 10  Proximate cause – determining whether it is reasonable to conclude the defendant’s actions led to the plaintiff’s injury o PC = Cause-in-face + foreseeability  “That case which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonable result therefrom. There may be more than one proximate cause of an event.” o But-for test  Media -> Physical harm – many believe that violent movies inspire real violent events o Two possible tests courts may apply  Negligence  Foreseeability  Incitement to harm  The soldier of fortune cases – Soldier of Fortune publishes stories about hunting, war and funs. The magazine appeals to “a male who owns camouflage clothing and more than one gun.” These cases emphasize foreseeability o Norwood v. Soldier of Fortune  “GUN FOR HIRE”  Two people each published an ad. Michael Savage’s said “GUN FOR HIRE: 37 year old professional mercenary desires jobs. Vietnam Vet. Discreet and very private…” The other ad said “GUN FOR HIRE. NAM sniper instructor. SWAT. Pistol rifle…”  Norman Norwood claimed Larry Gray, and others Gray contacted through Savage’s ad, conspired to kill Norwood, resulting in several physical injuries  Federal district court rejected the magazine’s argument that its First Amendment rights protected the publishing of the ads – free speech is not absolute. The jury found that the ads “had a substantial probability of ultimately causing harm to some individuals.” o Eilmann v. Soldier of Fortune  “EX-MARINES”  John Wayne Hearn’s Solder of Fortune ad said, ”EX-MARINES—67- 69 ‘Nam Vets, Ex-DI, weapons specialist—jungle warfare, pilot, M.E., high risk assignments, U.S. or overseas.”  Hearn accepted $10,000 to kill Robert Black’s wife, whose mother and son sued the magazine  The court ruled that the magazine had no duty to refrain from publishing the ad because a reasonable person would not have foreseen that ad might cause physical harm o Braun v. Soldier of Fortune  “GUN FOR HIRE” 11  Another Michael Savage ad similar to the Norwood case. A man contacted Savage through the ad and arranged to have Savage kill the man’s business partner, which Savage did, and his family sued the maganize  The jury found, again, that the ad on its face would have alerted a reasonably prudent publisher to the clearly identifiable risk o What’s to learn from these cases? If the language is obviously violence/foresees violence, it’s not protected by the First Amendment  Incitement to harm – Brandenburg: The Supreme Court ruled that the government may not punish advocacy unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action o Intentionality to cause harm  Natural Born Killers  Two people robbed a convenience store and the clerk claimed the move “Natural Born Killers” inspired her assailants – the shooter admitted the movie motivated her and her boyfriend to commit violence  The courts rejected the case because it had to be proven that the movie producers did not intentionally urge immediate unlawful activity  Rice v. Paladin Enterprises, Inc.  Paladin Press published “Hit Man: A Technical Manual for Independent Contractors” to plan and carry out real murders. James Perry bought the book and murdered three people. The victims’ families sued Paladin, which argued that because the First Amendment completely protected it, the publisher could not be responsible for any crimes connected to “Hit Man.” The appellate court rejected Paladin’s argument, saying that every court that addressed the issue agrees the Fist Amendment does not necessarily prevent finding a mass medium liable for assisting a crime. Paladin settled for $5 million o Imminence – the incitement test from Brandenburg requires that the media content cause “imminent” lawless action – a crime directly and immediately connected with the content o Likelihood of lawless acts – the incitement test also requires proof that it is likely media content would cause violence (different from foreseeability)  Radio DJs in LA  Communications Decency Act o Shields Web-based service providers from legal claims based on their carriage of material that third parties create o Section 230(c)(1): “No provider or user of an interactive computer service shall be treated as the publisher or speaker or any information provided by another information content provider.”  Other torts/dangers 12 o Breach of contract – exchange of promises between two parties; can be oral o Interference with economic advantage – the defendant interfered with the plaintiff’s prospective business relationship that promised economic rewards o Fraudulent misrepresentation – the fiduciary fails to disclose information  Fiduciary relationship – a legal duty or responsibility one party owes to another when the parties are in certain relationships with each other  Example: former student testified against his sexually-abusive past teacher thinking his name would not be published, but it was  Cases for study o Hustler Magazine Inc. v. Falwell  Facts: After Hustler Magazine and Larry Flynt published a satirical advertisement depicting Jerry Falwell as having his “first time” in an outhouse with his mother, the reverend brought suit based on invasion of privacy, libel and intentional infliction of emotional distress.  Issue: Is an award of damages for intentional infliction of emotional distress to the victim of a parody consistent with the First Amendment?  Rule of Law: When an advertisement parodying a public figure depicts facts which no reasonable person could take as true, that figure cannot prevail under a theory of emotional distress.  Analysis: If Falwell had been a private individual, his right of privacy would have allowed him to recover for emotional distress. Since he was a public figure, he could not prevail in defamation or emotional distress  Conclusion: the court upheld the judgment of the lower courts – public officials and figures had to prove actual malice. In this case, a parody (while admittedly in bad taste) is not considered malicious. o Snyder v. Phelps  Facts: Fred Phelps and his followers at the Westboro Baptist Church believe that God punishes the United States for its tolerance of homosexuality, particularly within the military. To demonstrate their beliefs, Phelps and his followers often picket at military funerals. Albert Snyder’s son was killed in Iraq, and the petitioners held aggressive signs at his funeral. Snyder syed Phelps and the church claiming that their actions caused severe emotional distress. Phelps argued for free speech  Issue: Were Westboro’s signs and comments while picketing Matthew Snyder’s funeral related to matters of public concern are were, thus, entitles to greater protection under the Free Speech Clause of the First Amendment?  Conclusion: Yes. SCOTUS held that the chuck was speaking on matters of public concern. The Court examined the content, form and context of the speech. Even though some of the signs 13 arguably targeted only the Snyder family, most of them addressed issues regarding the moral conduct of the U.S. The church was also picketing on public land adjacent to a public street, so they were entitled to protection under the First Amendment. March 1/3 – Chapter 8 Newsgathering: Pitfalls and Protections  Newsgathering in the Constitution o Access – absent a First Amendment right to gather news, journalists may not be allowed to enter public, quasi-public or private lands or buildings  “The First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”  The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act  Public property – if a journalist is in a public place and not disturbing what they are observing, documenting, photographing, etc., it’s legal  Quasi-public property – military bases, prisons, government land – two-pronged test to determine legality of entry: is the quasi-public place traditionally open to the public, and will requiring openness benefit the process  Private lands/buildings – generally not allowed o Laws of general application – content neutral; as long as laws do not specifically target or single out the press, they may be applied to the press. Laws are not unconstitutional merely because they incidentally or unintentionally infringe on the news media’s First Amendment rights  Newsgathering pitfalls o Trespass – entering another’s property, particularly private, without permission  Ride-alongs – a term given to the practice of journalists and other private citizens accompanying government officials – usually those in law enforcement or other emergency response personnel – as they carry out their duties  Hanlon v. Berger – a CNN crew accompanied federal agents to a Montana ranch. The Berger family, suspected of violating federal wildlife laws, lived on the ranch. The Bergers didn’t know until later that the lead FWS officer was wearing a CNN microphone and CNN video cameras. CNN agreed to air the videotape only if the case was resolved or a jury had been chosen if charges were brought. The Bergers claimed the officers violated their Fourth Amendment rights to be free from unreasonable searches and seizures. The Court ruled that the raid violated the Fourth Amendment because it was intended to serve a purpose other than law enforcement, purposes the Court categorized as entertainment. CNN and the Bergers settled out of court.  Wilson v. Layne – armed with a search warrant, deputy federal marshals and local police officers invited a Washington Post 14 reporter and photographer to accompany them when thy conducted an early morning raid to arrest a fugitive. The photographer took photos as police woke up a man and wrangled him with no explanation – the couple in the house was parents of the fugitive, who was not home. The couple sued, believing the search to be unreasonable. The Supreme Court ruled in favor of the couple because: a warrant does not mean a journalist is allowed to go with them, the presence of reporters inside the home wasn’t related to objectives presented in the warrant, the journalists didn’t assist the police, and therefore their presence was unrelated to the purpose of law enforcement intrusion  A search warrant entitles officers, but not reporters, to enter a home  The presence of reporters is unrelated to the authorized intrusion  The presence of reporters serves no legitimate law enforcement purposes  Inviting reporters for the execution of a search warrant violates the Fourth Amendment  Social media – The Fourth Amendment says that only the cops have knowledge of the warrant, and if the cop takes a picture during the search he would be acting outside of his duty and showing it to people who shouldn’t have access  Using social media as a source can be perilous. Information with no actual truth to it can go viral quickly and easily  Fourth Amendment o “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  Newsgathering pitfalls o Harassment - paparazzi  Galella and Jacqueline Kennedy Onassis – a photographer, Ron Galella, was sued by Onassis and the Secret Service, which claimed that Galella continually interfered with agents assigned to protect Onassis and her children. The court sided with Onassis and ordered Galella to remain a certain amount of feet away from her and her children – the “ambush-and-surveillance” journalism practiced by Galella became tortious newsgathering  Tortious newsgathering – the use of reporting techniques that are wrongful and unlawful and for which the victim may obtain damages in court  Anti-paparazzi legislation – California v. Paparazzi – Cali. lawmakers added a misdemeanor charge to photographers charged with driving recklessly in pursuit of celebrity photos or who block sidewalks to create a sort of “false imprisonment” 15  Laws grew especially after the 1997 car accident that killed Princes Diana as photographers pursued her o Fraud and misrepresentation  Food Lion, Inc. v. Capital Cities, Inc./ABC – producers of an ABC News TV magazine program infiltrated the Food Lion grocery chain to investigate accusations of unsanitary practices. Two ABC news reporters used false names and obtained job at Food Lion in the North and South Carolina. They wore hidden cameras and microphones to work.  Food Lion waged its legal battle on the newsgathering front, alleging fraud, trespass, unfair trade practices and breach of duty of loyalty  The courts ruled in favor of Food Lion, which had a chilling effect on the sort of newsgathering techniques used in the story.  Recordings o Covert recording – recording conversations or behavior without the subject knowing  Face-to-face recording  One-party states – 37 states and DC allow the use of a hidden recorder for face-to-face interview because only one party has to know about it  All-party states – 12 states require all parties to know about it  Recording in-state telephone calls  One-party states  All-party states o Recording interstate telephone calls  Federal law: one-party consent  Federal Communications Commission (FCC) rule: all-party consent – requires all-party consent, notification to all parties or repeating beep o Broadcasting recorded telephone calls  FCC rule: all-party consent –requires notification of all parties if a phone conversation will be recorded and broadcast or if it will be aired live  Exception for call-in programs o Electronic Communications Privacy Act (ECPA) – prohibits the unauthorized interception of electronic communication while it is in transit or in storage. One party’s consent authorizes interception  Bartnicki v. Vopper – ruled that the Fourth Amendment allows media use of an unauthorized recording as long as the user did not make the illegal recording. In this case, an unknown person intercepted and recorded a cell phone conversation between two teachers’ union negotiators with violent talks, and the media dispersed it. The media had no reason to believe it was obtained illegally and was not involved in the recording, and therefore when the negotiator sued, they had no argument 16 o Non-covert recording – even where public access if permitted, recording of certain events may be restricted; obtaining access through trespass, harassment or fraud and misrepresentation is illegal  Access to public property generally permitted  Limiting access to news events – disaster sites; be a reasonable person! Don’t run into a plane crash site to get the shot if no one else is going – you’ll get arrested and lose your case  Access to military operations – the DOD found in 2010 that it is important to allow access to news media to many aspects of activities and operations o Pool reporting – reporting by a small, select group of journalists who would accompany military operations and share their information and video with other members of the media. These journalists have to go through training and had to rely on whatever military they traveled with and were protected by, raising the question of objectivity o Embedded journalists  “Whether reporters and photographers in Iraq could maintain their independence while accompanying the troops has been the subject of ongoing debate.”  Denying Access to Records o Privacy Act of 1974 – gives individuals the right to examine government files that contain information about them o Student records  The Family Educational Rights and Privacy Act (FERPA) – or Buckley Act, forbids federally funded institutions of education from releasing students’ school records unless they, as adults, or their parents provide consent o Medical records  Health Insurance Portability and Accountability Act – prevents health professionals and institutions from revealing individuals’ medical records o Driver’s information – Driver’s Privacy Protection Act prohibits states from releasing information obtained from driver’s license and vehicle registration records without permission  Access to federal records o Open government laws – liberal democratic theory maintains that an obligation exists on the part of those in authority to provide information to the self-governed o Freedom of information act – requires records held by federal government agencies to be made available to the public, provided that the information sought does not fall within one of nine exempted categories  Federal agency records presumed open – applies to all executive federal government agencies but not the Congress, federal courts and court-martial or the military during wartime  What is a federal agency? – any executive department, military department, government corporation, government controlled corporation, or other establishment in the executive branch of the government, or any independent regulatory agency 17  What is a record? – requires each agency to publish the procedures by which records can be obtained  Using the FOIA to obtain records – the requested form must be part of the legitimate conduct of the agency’s official duties o FOIA exemptions  National security  Internal agency rules and procedures  Disclosures forbidden by other statutes  Trade secrets  Agency memoranda  Personal privacy  Law enforcement records  A government can deny disclosure if release of the record will interfere with enforcement proceedings, deprive a person of the right to a fair trial, constitute an unwarranted invasion of privacy, disclose the identity of a confidential sources, disclose law enforcement techniques and procedures, or endanger the life of safety of any individual.  U.S. Department of Justice v. Reporters Committee for Freedom of the Press – a journalist filed a FOIA request with the FBI for its criminal records on four members of a family suspected of criminal activity. The FBI complied with the requests pertaining to the three family members who were deceased but not the remaining living member. The journalist argued that there was a public interest in learning about his past arrests or convictions, since he allegedly had improper dealings with a corrupt congressman and he was an officer of a corporation with defense tactics. The Supreme Court upheld the FBI’s decision on the basis of regarding personal privacy  Financial records – the right of financial privacy act of 1978 protects the confidentiality of personal financial records under the Fourth Amendment  Geological information – designed to prevent oil and gas exploration that can provide companies with a competitive advantage  Computer records – EFOIA – Electronic Freedom of Information Act – provides access to electronic federal records  Congress examined the effects in 2000 and found that the number of public records requests had been stable or even declined, though many requests are unprocessed  Other access issues o Access to federal meetings – because the public’s business is being conducted, the processes involved and not merely the results are of legitimate interest  Government in the Sunshine Act – Federal Open Meetings Law – mandates that meetings of federal government agencies be open 18 to the public unless all or some part of a meeting is exempted according to exceptions outlined in the law o State open-records laws o State open-meetings laws – all states and DC have open-meetings laws or constitutional provisions ensuring some degree of access to public meetings  Cases for study o Wilson v. Layne - 1998  Facts: Police officers had warrants to enter a private home in order to arrest suspect Dominic Wilson. A Washington Post photographer and reporter were present in the home. The home was that of the suspect’s parents, and the son was not present. The couple was roused from bed in their nightclothes and the father was physically restrained. The parents sued the officers based on unreasonable search and seizure.  Issue: Does the State violate the Fourth Amendment by allowing media representatives to accompany police officers during the execution of search and arrest warrants in private homes?  Rule of Law: It is a violation of the Fourth Amendment for law officials to bring members of the media into a home when the presence of the third party is not in aid of the execution of the warrant  Analysis: Justice Rehnquist based his decision on the primacy of common law and Fourth Amendment respect for the privacy of the home. The officers had an arrest warrant and were definitely entitled to enter the Wilson home, but since the reporters didn’t aid in the execution of the warrant or assist the officers in any way, they had no reason to be in the house.  Conclusion: The media, or any other form of third party, whose presence does not aid in execution of the warrant, should not be allowed to participate in search and seizure. o U.S. Department of Justice v. Reporters Committee for Freedom of the Press – 1989  Facts: a journalist requested the criminal identification records of Charles Medico from the FBI, which complied with his dead relatives but not with him. The journalist and the Reporters Committee for Freedom of the Press challenged the denial as a violation of the Freedom of Information Act (FOIA). RCFP claimed that since Medico was an identified organized crime figure with corrupt ties to a United States Congressman, Medico’s criminal record was a matter of “public record” and “interest.” On appeal from an unfavorable appellate decision, the Supreme Court granted the U.S. DOJ certiorari.  Issue: Is a refusal to disclose an individual’s personal FBI crime record to a third party justifiable under the “personal privacy” invasion exemption of the Freedom of Information Act?  Conclusion: Yes. In a unanimous decision, the Court held that an individual’s interest in nondisclosure of any criminal records that 19 the FBI might have on him or her is precisely the sort of “personal privacy” that Congress intended to protect when it enacted FOIA exemptions. Balancing public knowledge interests against privacy considerations, the Court explained that RCFP’s request was overly broad. The request wanted all FBI records, not specific information concerning his file. The Court also stated that public interest in criminal record information is not increased simply because the requesting party is a news agency. March 8 – Chapter 9 Reporter’s Privilege: Protecting the Watchdogs  Reporter’s privilege defined – the concept that reporters can keep information such as source identity confidential. The idea is that the reporter-source relationship is similar to doctor-patient and lawyer-client relationships o Branzburg v. Hayes – involved four consolidated cases the Court heard together, involving Paul Branzburg, a reporter with the Louisville Courier-Journal. Branzburg had uncovered and written about illegal drug use and sales in the Louisville area and promised his sources he wouldn’t identify them. When he was issued a subpoena to appear before a grand jury to answer questions about the published stories and his sources, he kept his promises. The other two cases involved journalists who refused to provide information to grand juries about militant organizations they had covered. All three reporters claimed the First Amendment and its free press clause meant they should not be required to reveal confidential information given the circumstances of their cases – if they were forced to give away their sources, their ability to report news would be irreparably harmed, and even they appeared in front of a grand jury, their sources wouldn’t know what they said  Journalists required to appear and testify before grand juries  But… the Court ruled that journalists are not exempt from grand juries. Justice Lewis Powell suggested that any journalist’s privilege to withhold information should be evaluated case by case, and so the Branzburg qualified privilege test was born o Branzburg qualified privilege test  A reporter may withhold info at trial unless:  Probable cause to believe that the reporter has information clearly relevant to a specific violation of law  That the information sought cannot be obtained by alternative means less destructive of First Amendment values  There is a compelling and overriding interest in the information o Contempt of court – the offense of being disobedient to or disrespectful towards a court of law and its officers in the form of behavior that opposes or defies authority, justice, and dignity of the court  Civil – not related to the actual case; iusually compel and individual to do something, s


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