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Final Exam CNJ 303

by: Caroline Herter

Final Exam CNJ 303 CNJ 303

Caroline Herter
GPA 3.5

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Final Exam Notes
Communication Law and Policy
Dr Spigelman
Study Guide
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This 11 page Study Guide was uploaded by Caroline Herter on Thursday January 7, 2016. The Study Guide belongs to CNJ 303 at University of Miami taught by Dr Spigelman in Spring 2015. Since its upload, it has received 132 views. For similar materials see Communication Law and Policy in Communication at University of Miami.


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Date Created: 01/07/16
CNJ 303 STUDY GUIDE CHAPTER 16: Access to Courts (Free Press v. Fair Trial)  In conflict between a free press and a criminal defendant’s right to a fair trial, the two Constitutional rights involved are the First Amendment right of freedom of the press and the Sixth Amendment right of a criminal defendant to a fair trial  Both rights are important, but Sixth is more important o In general, SC has held that restrictions on the media may be imposed as a last resort if all else fails to ensure the defendant’s right to a fair trial  Jury Bias: when a juror has a preconceived opinion that prevents them from evaluating the facts of a case impartially  Knowledge of a defendant’s criminal record alone is not enough to disqualify a juror for bias  Types of information that, if widely publicized, would most likely “poison” the pool of potential jurors: o Confessions or other admissions by a defendant that might not be admissible at trial o The result of negative tests/ the fact that a defendant refused to take a test (may suggest he’s guilty) o Media opinions about the character, personality, guilt, or innocence of a defendant (“trial by media”) o Speculation on evidence or witnesses  The news media could make a fair trial more difficult by publicizing information about the trial that is likely to reach jurors, even though they are only supposed to consider the facts of a case that are presented in court  If a criminal trial attracts strong public interest, the trial judge is responsible for ensuring a defendant’s right to a fair trial  “Tools” available to judges to ensure fairness: o Change of venue  Moving to a new location where publicity has not been as intense so jurors are less likely to have been influenced by pretrial coverage o Change of venire  Import jurors from another community  Only works if there was only publicity where the crime occurred (same with change of venue) o Continuance  Defendant has to give up right to a speedy trial to delay it in hopes to get fair jurors as publicity diminishes over time o Voir dire  Process at the beginning of a trial where jurors are questioned to determine if they can be impartial o Admonitions to the jury  Judge can order jury not to read, watch, listen, talk about, or search anything about the trial o Sequestration  Isolating the jury for the duration of the trial  Journalists do not have a legal obligation to ensure a defendant the right to a fair trial, but they do have an ethical obligation to do so  A judge’s power is greater inside the courtroom  Journalists DO NOT have a constitutional right to take recording devices and cameras into courtrooms  It has been evidenced that the mere presence of cameras in a courtroom does not deny a defendant a right to a fair trial  Judges can impose gag orders on trial participants (lawyers, witnesses, prosecutors) BUT o They cannot be overboard o They cannot be issued unless it is necessary to protect a defendant’s Sixth Amendment rights to a fair trial and no other means to do so are available  Gag orders on news media outside the courtroom only if: o There was pervasive publicity likely to interfere with a fair trial o No other remedies were available o A gag order would be effective in preventing prejudicial publicity  Nebraska Press Association vs. Stuart- court offered 3-part test for gag orders against the news media o The nature and extent of pretrial news coverage o Whether other measures would be likely to mitigate the effects of unrestrained publicity o How effectively a restraining order would operate to prevent the threatened danger  Gag orders only in rare exceptional circumstances, not easy to defend gag orders  Public and news media do have a constitutional right to attend criminal trials once a judge determines that the type of proceeding has historically been open to the public and public access plays a positive role in the proceeding’s function  Richmond Newspapers Inc. v. Virginia (and other cases that followed) established a two-part test to determine whether the press and public have a First Amendment right of access to criminal proceedings o “whether the place and process have been historically open to the press and the general public” o “whether public access plays a significant positive role in the functioning of the particular process at question”  Judges can close parts of a trial for a limited time for compelling reasons o Must issue specific written findings that closure is essential to preserve higher values, like the right to a fair trial or juror or victim privacy rights o The closure is as narrowly tailored and brief as possible CHAPTER 15: Confidential Sources and Information  Subpoena: a written order requiring someone to attend court  News organizations usually have subpoenas directed at journalists squashed, because journalists cannot do their jobs without committing to sources that they won’t be identified o “Reporters privilege”  Journalists are protected by testimonial privileges when ordered to testify or provide evidence o Privilege not to reveal the identity of a confidential source o The privilege to refuse to turn over unpublished information or unpublished work o Protection from newsroom searches by law enforcement  Journalist privilege has diminishing support among federal judges  Arguments made by news organizations for at least a limited, or qualified privilege to protect their news sources: o Ability to get sources o Free flow of information o Press serves as a watchdog of powerful entities o There would be no news without sources  These are all good reasons—they all will have an adverse affect on public information gathering if they are not protected  Branzburg v. Hayes- Supreme Court ruled 5-4 that the First Amendment does not provide journalists the freedom from testifying in court about criminal activity they witnessed  Journalists do receive qualified privilege- privilege awarded to journalists if their information is only remotely related to a grand jury investigation or if there is no legitimate law enforcement need for the information  Garland v. Torre- Judy Garland sued CBS for breach of contract alleging that Torre had made defamatory statements about her o CBS/ Torre would not identify the informant and was held in contempt of court  Garland v. Torre- established 3-part test to determine if a journalist must testify o There is probably cause to believe that the reporter had information clearly relevant to the crime being decided on o The information cannot be obtained by alternate means less destructive to First Amendment rights o There is a compelling and overriding interest in the information  Most journalists do not believe they can rely on the Garland v. Torre test, because journalist privilege is still not usually seen as correct in federal courts  Shield Law: a law that protects journalists from having to reveal confidential sources  Shield laws exist in 39 states and vary by state  Shield laws protect/ apply to journalists  No federal shield law exists (despite many bills proposing one)  Journalists support the passage of a federal shield law because it would mean Congress is on the side of the press  A search warrant is a court order allowing law enforcement to search a suspect’s property and take items as evidence  Search warrants differ from subpoenas because warrants are not often used and journalists have no warning before a search warrant is issued against them like a subpoena gives them before they must appear in court  Zurcher v. Stanford Daily- Court ruled that First Amendment does not bar searches of places unassociated with criminal suspects if police reasonably believe evidence is there o Congress responded to this with the Privacy Protection Act of 1980 that severely limited the government’s power to obtain newsroom search warrants  Supreme Court says that relationship between journalism/ source can be treated as a contract o Oral contract o Gives a deep level of trust o Does not necessarily violate the Constitution o More of an ethical relationship than legal  A promise of confidentiality is always a binding legal contract CHAPTER 17: Access to Public Documents and Meetings  Access to all government information is not guaranteed in the Constitution o First Amendment protects discussion about government and officials  Access to all government information was guaranteed under Common Law (before FOIA) if the requester was granted release, but the burden was on the requester  Most government records come from government agencies  Some specific records come from statutes  Freedom of Information Act (FOIA)= primary federal statute affording a broad-based presumption of public and media access to government records  The FOIA applies to government agents and agencies except those in the President’s inner circle, Congress, and the courts o Not covered because they are allowed to say their opinion  Federal Agency: a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions  A government record is a written record of everything said in both houses of Congress  Anyone can request a record, and they do not have to give a reason for doing so  The cost for accessing records varies o Commercial users required to pay for the whole service o Educational and news media do not have to pay to access records, just copy them  The presumption of access may be balanced against such other important government interests as national security and privacy  Some of the most important exemptions to access under federal law are: o National security o Agency personnel rules and practices o Records covered by other federal laws o Trade secrets o Privileged government communication o Confidential personnel and medical files o Confidential law enforcement records o Records concerning regulation of financial institutions o Oil Well information  When federal record keepers deny legitimate access, they can be punished by fines or jail time  States have access statutes similar to the federal government, some are more specific than others  Florida’s public record and meeting laws (Sunshine Laws) are considered strong because they are very inclusive and have everything online CHAPTERS 10 & 11: Regulation of Broadcast and Cable  Broadcasting: To transmit something (ie radio/ television programming) for public or general use to a dispersed audience, usually using the medium of electromagnetic radiation (radio waves).  The government started regulating broadcasting with the Radio Act of 1927, which was added to by the Communications Act of 1934 o Five rationales from these acts have endured  The five rationales for government regulation of broadcasting that have endured are: o The notion that the public owns the airwaves, so the government which represents the public can demand that the airwaves used in the public’s interest o A licensed broadcaster is merely a trustee of the publicly owned air waves and therefore must act like the public’s proxy when using the public resource o The scarcity of useable airwaves for broadcasting suggests that the government must regulate their assignment and use, and has the right to invoke a broadcaster’s license if it is in the public interest to do so o Broadcast audience is more “captive” than print media, so they are less likely to scrutinize information they receive via tv or radio, so it is important that the government insure broadcasters are operating in the public interest o Airwaves do not have the typical physical boundaries as more tangible means of communication do, making them more pervasive. As such, their potential is so great that the government may regulate them  Broadcasting regulation’s primary goal is to ensure that broadcasts serves the public’s needs  The FCC’s primary goal is “public interest, convenience, and necessity.” That standard is supposed to govern committee decisions.  The FRC was the government body that regulated broadcasting (radio use) in the US from 1926 until the Federal Communications Commission replaced it in 1934 o Could grant or deny licenses, assign frequencies, prevent spectrum interference but could NOT censor content  The FCC (Federal Communications Commission) that has jurisdiction over radio and wire communication services o FCC is responsible for regulating broadcasting as well as other spectrum uses (satellite communication, amateur radio, aspects of telephone sercives) o FCC works towards goals in the areas of:  Broadband  Competition  The spectrum  Media  Public safety  Homeland security  Broadcast licenses typically last 8 years, but the FCC may grant shorter licenses if they deem it to serve the public’s interest  The government also regulates the content of broadcasting o Some types of shows can only be aired at certain times of day o Indecency/ profanity are forbidden  When a license is up for renewal, the FCC looks at whether or not licensees have complied with all rules and regulations, also considering any publics submitted by the public o Licensees who engaged in serious misconduct during their term might not be granted a renewal  The FCC dictates such rules regarding political broadcasting as: o Candidates for the same office have the right to approximately the same amount of time during the same period of day when they are likely to be seen or heard by the same size and type of audience o Broadcasters must charge rock-bottom prices to political advertisers  Debates, legitimate news coverage and documentaries are exempt from political broadcasting rules  Broadcasters are forbidden from airing indecent or profane programs during certain hours o Using indecency can result in loss of license after 8 year period  The government does not regulate cable overall, because in order to use it you need to subscribe/ pay o Content-based regulation of cable is similar to content- based regulation of broadcast and print—regulations directed at content must pass the strict scrutiny test  Cable must-carry rules: (1) state that cable provider systems must carry locally-licensed stations whether they want to or not, and (2) a local system may carry only a certain number of cable networks CHAPTER 12: New Communication Technologies  Internet: a global network connecting millions of devices that makes information exchange possible  World Wide Web: a system of interlinked hypertext documents (web pages) accessed via the internet  Supreme Court struck down provision of Communications Decency Act (CDA) that attempted to regulate internet indecency on First Amendment grounds  Supreme Court refused to hear government’s third appeal for Child Online Protection Act (COPA), so it never took affect. Courts said that forcing providers of indecent (not obscene!!) material via the internet to minors was not the least restrictive means to shield children from inappropriate content  Supreme Court upheld Child Internet Protection Act (CIPA) that did not attempt to regulate content, just use federal grants as incentives for libraries to use software filters  A publisher on the internet owns the IP of the product or service/ makes the service/information/website, whereas a distributor on the internet just passes along information online  Internet Service Providers (ISP) may liable for offensive or slanderous material posted on a website, depending on the nature of the information (specific content author/ designer may also be held accountable)  ISPs can also be named in lawsuits as being a disseminator of a defamatory message o Even though provider may not have known about defamation, they still provided internet access and a network for delivering it  ISPs are not liable for copyright infringement on their systems when they are acting as neutral channels for transmitting or sorting information o Law assigns blame to individuals who violate copyright  ISPs are required to remove or disable to a material that is claimed to be infringing on a copyright if they receive notice from a copyright holder  Obscenity on the internet is not protected by the First Amendment and is subject to government regulation, although obscene speech specifically directed towards an adult audience is protected  The federal government may regulate commercial speech on the internet if the distribution is meant for interstate consumption, and state and local governments may regulate commercial speech in the place where it originates  The federal government regulates defamation on the internet by insulating ISPs from defamation accusations stemming from statements made using their service  The federal government loosely regulates privacy on the internet by prohibiting “unfair and deceptive practices” (Federal Trade Commission Act), and the FTC has determined the phrase to apply to lax data security procedures o State and local governments regulate internet privacy mostly  Content protected by the First Amendment on the Internet are awarded the highest level of First Amendment protections.  Legal issues when government attempts to protect kids from porn, gambling, etc. on the internet: o Doing so would subtract from the First Amendment right of adult reason o There are ways to prevent kids from gambling or watching porn that do not conflict with the First Amendment as much CHAPTER 5: Regulating Pornography  Obscenity has been around since the Bible  Obscenity receives no constitutional First Amendment protection  Today, obscenity is a legal term for material that a court has deemed illegal. It refers to sexual expression that is disgusting to the senses or abhorrent to morality o Content that is more offensive than just indecent speech or “mainstream pornography.” o Hardcore pornography is an example of obscene speech  Obscenity does not deal with content that is merely pornographic or indecent  Pornography changed from a religious to a secular matter in England when businesses began to sell pornography  English case Regina vs. Hicklin set the standard that would generally apply to England and the United States until the 1960s o Hicklin test defined obscene material as tending to “deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall”  Roth v. United States established a new legal definition of obscenity, which was expanded on in Miller v. California to be the current legal test for obscenity  Current legal test for obscenity from Miller v. California: o Whether the average person applying contemporary community standards, would find the work, taken as a whole, to appeal to the prurient interest (aka find the work to arouse an immoderate or unwholesome interest in sex) o Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law o Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value o **all three conditions must be met for a work to be deemed offensive  An administrative agency cannot deem something legally offensive, only state legislature can (decided in Rowan v. Post Office)  Mere violence is not legally obscene, unlike sex it is “not categorically unprotected by the First Amendment” (United States v. Stevens) o Animal cruelty is not considered obscene content either  Pornography is different than obscenity, because “pornography” refers to sexual expression that gets some First Amendment protection, and obscene content receives NO First Amendment protection o Pornography can also be legally sold  Non-obscene pornography cannot be legally banned, but child pornography can be  Broadcasters are prohibited from transmitting indecent messages except during selected hours of the day o First Amendment protects indecency in print and on the internet more than in broadcasting  Indecent broadcast programming contains sexual or non-sexual content that are considered clearly offensive, although not at the level of pornography or obscenity  The Supreme Court has ruled that broadcast indecency is permitted during certain hours  It is constitutional for the government to regulate non-obscene porn in terms of time, place, and manner, particularly to keep it away from children  Supreme Court ruled in National Endowment for the Arts v. Finley that a government agency can consider decency standards and “American values” in deciding which artistic projects receive federal grants


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