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UF / Journalism Core / JOU 4200 / What is the definition of obscenity?

What is the definition of obscenity?

What is the definition of obscenity?


School: University of Florida
Department: Journalism Core
Course: Law of Mass Communications
Professor: Sandra chance
Term: Winter 2016
Tags: media law, Law, mass communication, law of mass communication, first amendment, court systems, and SCOTUS
Cost: 50
Name: MMC 4200 Exam 3 Study Guide
Description: Chapters 9, 10, 11, and 12. Obscenity and indecency, First Amendment protections, prurient interests, community standards, patent offensiveness, indecency vs. obscenity, safe harbors, Communications
Uploaded: 04/16/2016
15 Pages 26 Views 30 Unlocks

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Exam 3 Study Guide

What is the definition of obscenity?

Exam 3: Tuesday, April 19, 2016 at 3:00pm.

Professor Sandra Chance

Covering Chapters 9, 10, 11, 12

Chapter 9 — Obscenity and Indecency 

• Questions:  

1. Remember the scarcity doctrine and Red Lion v. FCC.  How does this case help you  understand how the government can regulate broadcasting?

o This case tells you that you have a constitutional right to reply to attacks on broadcast.  o You do not have this right from the constitution in print media.

o In the case, SCOTUS upheld FCC's right to regulate broadcasters because the spectrum is  scarce and protected like a natural resource.

o The ruling also says that broadcasters must operate in the public’s interest.

What is the communications decency act?

o For the public, their First Amendment right to receive information is greater than  broadcasters' rights to limit the information that they transmit.

2. What is the definition of obscenity?  Know the three-part test courts must use in order to  determine if a work is obscene.

o There have been several different definitions of obscenity throughout history. Obscenity  is now defined by the Miller Test. According to this test, material is obscene if:  1. An average person, applying contemporary local community standards, finds that  the work, taken as a whole, appeals to prurient interest.  We also discuss several other topics like How does age affect the sexual­ reproductive systems in both men and women?

2. The work depicts in a patently offensive way sexual conduct specifically defined by  applicable state law.  

What are the judicial remedies for prejudicial publicity?

3. The work in question lacks serious literary, artistic, political or scientific value. o In order for a work to be obscene, all of the three parts must be met. 

3. What level of First Amendment protection does obscenity get?

o Obscenity is classified as Level 3 speech. 

o As such, it gets no First Amendment protections. 

4. What does “prurient interest” mean? How do courts define “community standard?”  What  is “patently offensive”?

o Prurient Interests are defined in the Miller Test. According to it, these interests are:   o A shameful or morbid interest in nudity, sex or excretion  Don't forget about the age old question of What is the reinforcement principle?

o However, the work must be taken as a whole  

▪ This is an important part; you can't determine that a movie is obscene  

because of one single scene in it

▪ This is also why a lot of pornography falls outside of the Miller test  

(especially soft core porn, porn with storylines)

o Does not include violence

▪ Violence is not considered obscene

▪ Women's rights activists have tried to fight to get violence part of  

prurient interests (because of the degradation of women), but it is still  

not included

o Can also be defined as: lascivious, shameful or morbid interest in sex (including  thing like bestiality, necrophilia)

o Community standards: Most jurisdictions consider these “state standards”  • Most of them look at the state as a whole (the entire state of Florida's opinion on  the material)

• For the jury to decide (judge if no jury present)  

• Venue shopping: selecting a jurisdiction/site where a conviction can be most easily  obtained

• Cases involving shipping of sexually explicit material  

▪ Inter-state or inter-jurisdiction shipping

▪ Where do you choose where the jurisdiction is?  We also discuss several other topics like What are the effects of advertising?

▪ If you're the plaintiff, you want a more conservative jurisdiction

▪ If you're the defendant, you want a more liberal jurisdiction

• Cases involving the Internet  

▪ Very important when talking about online jurisdiction

▪ Where is the jurisdiction? Where it was uploaded? Viewed? Server location?  • A national community standard only exists in the 9th Circuit  

▪ This is the only court that accepts cases from anywhere

▪ It's in California

• Individual juries decide "average person's views" in their own city, county and state,  (standards may differ)

o Patent Offensiveness:

▪ To be determined by trier of fact (jury/judge), using community standards ▪ Only hardcore pornography meets this standard  

• This is important

• In order for any material to be considered obscenity, it has to at least be  considered hardcore If you want to learn more check out What is a financial calculator?

▪ Justice Rehnquist’s definition in Jenkins v. Georgia

• "Ultimate sexual acts"  

• "Normal or perverted, actual or simulated"

• Some soft core porn has "lewd exhibitions of genitals" etc. (also part of  definition)

▪ More than pornographic (Playboy) 

5. What is the definition of indecency and how is it different from obscenity?  What level of  First Amendment protection does indecency get?

o Indecency is language that describes sexual or excretory activities or organs in terms  patently offensive by contemporary community standards for the broadcast medium,  AT TIMES WHEN KIDS MAY BE IN AUDIENCE. 

o It's ok for adults to see it. 

o It is Level 2 speech, protected by the First Amendment.  

o Equal to commercial speech, and more easily regulated than political and social speech. o Non-obscene sexual expression (Examples: painting nude bodies, writing poetry about  an "adventure," teaching a health class, breast cancer and prostate info and pics) o Non-obscene sexual expression + excretory functions and filthy words = INDECENCY 6. What does “channeling indecency” mean? What is a “safe harbor”?

o 1. Ruling that broadcasters can be constitutionally restricted to airing indecency only  during safe harbor times.Don't forget about the age old question of Who can inherit color blindness?

o 2. A time to broadcast indecency when kids aren't likely watching, but allows adults  access to it because is constitutionally protected speech. (Usually 10 p.m. to 6 a.m.) o (FCC v. Pacifica aka 7 dirty words) 

7. Following the Janet Jackson episode, what is happening in terms of indecency regulation  now? (Hint – on outline and class discussion.)

o SCOTUS is trying to decide whether FCC's indecency policy is constitutional. o SCOTUS said they have god reason to call fleeting expletives indecent. o Now saying the policy is too vague. Hasn't delivered an opinion on the case yet. 

8. What is the difference between a broadcaster, a cable operator and a common carrier? Why is the difference important?

o Print: not licensed and not subject to government regulation 

o Cable: SCOTUS said they can be regulated but not not as much as broadcasters. Since  people pay for it and it is not as intrusive as broadcasters. Regulations not as  constitutional.

o Common carrier (phone): People pay for service. They are not responsible for content.  Regulations not constitutional

o Broadcast: FCC Regulations are constitutional. 

o Cable receives more First Amendment protections than broadcasters, but not as much  protections as print We also discuss several other topics like What is the difference between atoms and molecules?

o You have a right to reply to attacks on broadcast because the public owns the broadcast  spectrum. There is no right to reply in print.

9. What is the Communications Decency Act and is it constitutional?

o The Communications Decency Act banned transmission of indecent material entirely o Made it a crime to transmit indecent material over public computer networks that can  be accessed by minors

o It was found to be unconstitutional in Renu v. ACLU because it was overbroad  o According to the ruling, adults have right to access indecent material. 10. What level of First Amendment protection applies to the Internet?

o The Internet has Level 1 Protection, equal to print and other types of speech. o In Reno v. ACLU, SCOTUSOTUS said Internet has equal protections to print. 11. What about the Child On-Line Protection Act (COPA)?  What is it and is it constitutional? o COPA is essentially version 2 of the Communications Decency Act. 

o Prohibits websites from knowingly transmitting to minors material that is harmful to  minors  

o Very similar to the provision in the CDA that was held to be unconstitutional o Ashcroft v. ACLU (2004) SCOTUS held unconstitutional and unenforceable ▪ Did not meet strict scrutiny standards

▪ This means that there is of course a compelling interest to stop it

▪ The restriction should be on the receiving end (ways to stop types of browsing  with filters, etc.), not at the source

12. What about the Children’s Internet Protection Act (CIPA)?  What is it and is it  constitutional?

o Requires libraries to use filtering software. 

o Still stands. Is constitutional. 

o Requires public libraries to install anti-pornography filters on all their computers  o United States v. American Library Association (2003) SCOTUS upheld CIPA o Adults must be allowed to still have free range upon request

▪ These filters catch a lot of things that aren't actually pornography

▪ Adults must be allowed to have access if they are looking for information 13. What are variable obscenity laws? What does Florida’s law say?

o Laws can regulate material sold and distributed to minors harsher than they can for  adults  

o Every state except 1 has anti-obscenity laws

o Federally, obscenity enjoys zero obscenity protection; there is only 1 state that  gives  

o Two standards for what is obscene  

o There are two standards: what is considered obscene for children

o And what is considered obscene for adults

o Examples:  

o Blinder racks

▪ Magazine coverings in stores, etc.

▪ These are required by law because the content is considered obscene  for children

o “Adults Only” movie section  

▪ This is required to exist if there is anything in movies that is considered  to be obscene or harmful to minors

o Florida has variable obscenity, “harmful to minors” standard  

o Anything that is "harmful to minors" is considered obscene for minors, but is  fully protected to be sold to adults

14. What is sexting, in legal terms? How does Florida regulate it?

o In legal terms, sexting between adults is legal. When it comes to children, there are  regulations in effect.

o Children and sexting:

o Minors who take, possess or distribute sexually explicit photos of other minors  or themselves are not exempt from child pornography statutes  

o 20 states have passed statutes against sexting (as of July 2015)  

▪ These laws are only talking about photos; words are not part of this  

o Florida legislation passed in 2011  

▪ First offense: 8 hours’ community service or $60 fine or sexting  

training class  

▪ Second offense: misdemeanor  

▪ Third offense: felony

▪ Multiple images within a 24-hour period is considered one offense

15. What is revenge porn? How does Florida regulate it?

o 26 states have adopted revenge porn laws

o Typical situation is an angry ex-SO who posts sexually explicit photos/images/personally  identifying info online for others to see  

o A lot of First Amendment advocates have said that these laws are dangerous o They claim that other laws can cover this area (examples: copyright law, privacy laws) o Florida lawmakers attempted to pass 2 bills against revenge porn- both failed  o Until now!  

o Gov. Rick Scott signed into law on May 14, 2015 “sexual cyberharassment” bill  o First offenses are misdemeanors

o Repeat offenses can be felonies


o First major criminal prosecution in California

o VIDEO:  

o First person convicted of posting photos with the intention of causing emotional  harm

o Some argue that the First Amendment is in danger with these laws

o Opinion of panelist: maybe there's a way to have protection for news  

organizations in newsworthy events

o ACLU has come out against these laws as being "overbroad"

▪ Think that there are other laws that cover this and give protections to  


▪ WithoutMyConsent.org helps to inform people on how to protect  

themselves when it comes to these situations

• Important Cases:

o Red Lion v. FCC 

▪ Red Lion challenged the FCC in this case.

▪ This is considered the most important case concerning broadcasting.

▪ Supreme Court said that electromagnetic spectrum was a limited, scarce  resource that required a system of government allocation.

▪ As long as the demand for spectrum space was greater than what was available,  no one could claim a First Amendment right to broadcast.

▪ The right to free speech is not violated when the FCC ensures that the spectrum  is used to serve the public interest.

o Miller v. California 

▪ Case where SCOTUS defined obscenity and developed new 3-part test. 

▪ Miller was a business operator, marketing adult material. 

▪ The company sent out pornographic marketing brochures as direct mail. ▪ He was arrested on criminal penal code—which regulated obscenity. 

▪ According to the 3-part test, something is obscene if: 

• An average person, applying contemporary local community standards,  finds that the work, taken as a whole, appeals to prurient interest.  

• The work depicts in a patently offensive way sexual conduct specifically  defined by applicable state law.  

• The work in question lacks serious literary, artistic, political or scientific  value.

o N.Y. v. Ferber 

▪ Ferber was convicted of selling a video of two kids masturbating. 

▪ If kids under 16 are exploited, it's ok to punish the individual w/ law to protect  kids.

▪ SCOTUS upheld conviction. 

o Ashcroft v. Free Speech Coalition 

▪ Ashcroft had used computer programs to create virtual, cartoon renderings of  child porn (anime)

▪ The Child Protection Prevention Act criminally punished virtual child porn. ▪ SCOTUS shot it down because the law was overbroad and unconstitutional o FCC v. Pacifica 

▪ George Carlin: 7 Dirty Words 

▪ Indecent speech IS protected but it is constitutional to make them CHANNEL it.

▪ SCOTUS said George Carlin's Filthy Words monologue was protected by the First  Amendment, and that the FCC could constitutionally regulate indecent speech  and fine broadcasters who violate their regulations.

▪ This is the case where SCOTUS laid out how the FCC could regulate indecent  programming, and defined how indecency is protected.

▪ Broadcasters must channel indecent speech during safe harbors times. ▪ The speech IS protected, though!!! It simply can be channeled. 

▪ A radio station broadcast the entirety of one of George Carlin's monologues  called "filthy words"

▪ The station did proceed the show with a disclaimer

o A father riding in car with his "young son" (who was a late teenager)  was offended by the airing (despite the disclaimer) and filed a complaint  with the FCC

o Pacifica ignored a complaint to the station and said that they were  protected because they had used the disclaimer.

o He took his complaint to the FCC, who disagreed with the station and  considered it to be indecent.

o FCC sued Pacifica and won. 

o SCOTUS upheld because indecency can be regulated. 

▪ Rule of Law: The FCC has the “authority to impose sanctions on licensees who  engage in obscene, indecent, or profane broadcasting.”  

▪ Reasoning:  

o “Of all forms of communication, broadcasting has the most limited First  Amendment protection.”  

▪ This is the first case in which the court made this opinion

o “Pervasive presence”

▪ This is the reason why they said that broadcast has the most  

limited FA protection

▪ They said this because you can't control what's coming out of  

the waves; you aren't in control of what comes out at you

o “Uniquely accessible to children”

▪ Even a child that can't read can turn on the television or the  


▪ The reasoning for this is that children can't read other types of  

media, but they can listen to and view broadcast

o FCC v. Fox 

▪ Fleeting expletives- a random curse word or nude scene. Not what the whole  program is based on.

▪ At Golden Globes, Bono said, "this is f---ing brilliant." 

▪ People complained to FCC. FCC dismissed it as a fleeting expletive. ▪ When Bush appointed new FCC commissioners, they changed their mind and  fined Fox.

▪ Second Circuit court found FCC's policy too vague, and completely invalidated it.  FCC has to develop a new one now.

o Turner Broadcasting System, Inc. v. FCC 

▪ Cable receives more First Amendment protection than broadcasters, but not as  much as print.

▪ Cable is not a limited spectrum so can't be regulated like broadcast, but still  regulated because it could be invasive.

▪ But you purchase cable and invite it in 

o Reno v. ACLU 

▪ The Communications Decency Act Banned transmission of indecent material  entirely

▪ SCOTUS found it unconstitutional because it was overbroad (adults have right to  access indecent material)

▪ Internet has the same level of First Amendment protection as print. 

o Ashcroft v. ACLU (COPA) 

▪ Where SCOTUS found the Child Online Protection Act (COPA) unconstitutional  and unenforceable.

▪ Same case as Reno v. ACLU but Attorney General changed. 

▪ Internet is like Wild West. There is good stuff and bad but it's important to be  open and protected.

o United States v. American Library Association (CIPA) 

▪ SCOTUS upheld CIPA

▪ Adults must be allowed to still have free range upon request

• These filters catch a lot of things that aren't actually pornography

• Adults must be allowed to have access if they are looking for  


Chapter 10 — The Media and the Judiciary 

• Questions:  

1. What constitutional provisions are in conflict when the media want to cover the courts? o Right to fair trial (6th Amend) v. Right to free press (First Amend) 

o right to fair trial > press' right to free press 

2. What are the judicial remedies for prejudicial publicity?

o The judicial remedies for prejudicial publicity are ways that judges can protect  defendant's rights & control press

o Options:  

1. Change of venue 

2. Change of venire (change entire pool of jurors) 

3. Continuance (postpone trial until publicity dies down) 

4. Severance (split 2 defendants up and try them separately) 

5. Voir Dire (council questions potential jurors) 

6. Sequestration (judge restricts jury from influences. Makes them stay in hotel, to TV,  etc.)

7. Judicial Admonition (judge warns jury not to be influenced, but no official  


8. New Trial (retried altogether) 

3. When can a court overturn a verdict because of pretrial publicity?

o Only if: 

1. Individual bias in a juror 

2. So much publicity that there is a presumption of prejudice 

4. How does the U.S. Supreme Court define bias?

o Bias: a juror is so affected by prejudicial publicity that he cannot set aside preconceived  ideas and decide a case solely on the evidence presented during a trial.

o Decided in Murphy v. Florida 

5. How should reporters respond if a judge wants to close a courtroom? o Ask for the judge to have a hearing! It's your right! 

o Public and press have limited First Amendment right to access a trial. 

o A trial in a criminal case can be closed only if the state interest in a fair trial overrides  right of public and press to attend.

o Check for if closure meets standard: 

▪ Compelling reason for closing the courtroom. 

▪ Documented overriding interest that cannot be protected by alternative means. ▪ Closure is narrowly restricted 

▪ Judges have to have a hearing to determine those issues, and reporters should  make sure these hearings happen!

o Decided in Richmond Newspapers v. Virginia 

6. What are the rules regarding cameras in the courts?  Is there a difference between state  and federal courts?  How many states allow cameras in their courtrooms? What’s the rule  in Florida?

o Right to have cameras in court room is up to STATE. No First Amendment right, but Sixth Amendment does not bar them.

o No cameras allowed in Federal (grand jury) trials. In fact, public and press not allowed at  ALL.

o 44 states allow cameras in the courtroom. 

o Florida has one of the broadest camera laws. Judges have almost no discretion to  remove cameras from the courtroom, only if it makes a substantial difference or  disruption than a different form of media.

7. What can judges do to control prejudicial publicity?  What can’t they do? o Can gag order media to prevent from GATHERING news. 

o Can gag orders news sources (witness, council, someone who could convey news) o Can't prevent media from PUBLISHING 

8. What is a gag order?  Who can and cannot be gagged?  

o A gag order is a restriction on MEDIA from gathering info or on NEWS SOURCES  (witnesses, council, someone who could convey news) from talking to journalists o Gags on news sources are constitutional. 

o Gag orders on media are presumed to be unconstitutional. They are constitutional if it is  the only way to protect a fair trial (6th Amendment)

o Must pass 3-part test from Nebraska Press v. Stuart is met (very hard) 9. What test for gag orders did the court establish in the Nebraska Press Assoc. v. Stuart case? What three factors did the Nebraska Court say courts must consider before issuing a  gag order?

o Gag orders on MEDIA are unconstitutional unless all parts of 3-part test are met: ▪ 1. Nature and extent of pretrial news coverage is prejudicial 

▪ 2. Whether measures other than a gag order would mitigate the effects of that  publicity (Shepard v. Maxwell)

▪ 3. How effective a gag order on the press would be in diminishing the effect of  pretrial publicity (heavy burden to prove)

10. Do the media have a First Amendment right to attend judicial proceedings?  When can  judicial proceedings be closed?  Which proceedings are open to the public?

o Public and press have limited First Amendment right to access trials. 

o Grand jury and juvenile proceedings are CLOSED 

o It is constitutional to close judicial proceedings if it is the only way to protect fair trial o Almost all other things are open to PUBLIC AND PRESS 

o There is no First Amendment right to have cameras in the court room 

11. What kinds of statements are likely to raise a strong presumption of prejudice? o The kinds of statements that are likely to raise a strong presumption of prejudice:  ▪ Confessions 

▪ Prior criminal records 

▪ Results of scientific tests, lie detectors, blood tests, DNA, ballistics 

▪ Character flaws or lifestyle rumors 

▪ Potential witnesses, testimony or evidence 

▪ Speculation by officials 

• Important Cases:

o Sheppard v. Maxwell 

▪ Man was accused and convicted of killing his wife. 

▪ He was asleep on the couch and woke up to his wife screaming. Saw a figure  upstairs, fought with it, woke up from being knocked unconscious when she was  dead.

▪ Media frenzy. Judge allowed press to invade and be noisy during trial. 

▪ After spending 12 years in jail (a "Roman holiday"), SCOTUS reversed the  decision.

▪ SCOTUS called the atmosphere "carnival-like,” the judge should have done a  change of venire (getting a new juror pool)

o Murphy v. Florida 

▪ Jewel thief was charged w/ assault, robbery and something else. 

▪ He was tried and plead guilty. 

▪ Later was charged for murder. Media published his criminal history. 

▪ He appealed and said jury was prejudiced against him. 

▪ SCOTUS said jury's knowledge of criminal record alone does not raise  

presumption of prejudice.

o Patton v. Yount 

▪ Guy confessed before being read his Miranda rights. 

▪ Media frenzy, but media only published facts. 

▪ Went to pre-trial. Got convicted a second time. 

▪ He appealed on the grounds that the publicity had influenced the jury. 

▪ SCOTUS said no, enough time had passed before second trial. 

o Irvin v. Dowd 

▪ Confessed to murder of 6 people. 

▪ Media frenzy and media published false info 

▪ 8/12 jurors thought he was guilty before even hearing case. 

▪ Council motioned for change of venue. Judge denied. 

▪ SCOTUS said judge should have granted it. 

o Chandler v. Florida 

▪ 2 cops were tried and convicted for burglary. 

▪ They appealed because of cameras in the courtroom creating bias. 

▪ SCOTUS said in order to overturn on prejudice, one must PROVE that the cameras prejudiced the conviction

o Richmond Newspapers, Inc. v. Virginia 

▪ Criminal trial where the judge closed the court (no press was allowed) ▪ SCOTUS said public and press has a limited First Amendment right to attend  criminal trials

▪ A trial in a criminal case can be closed only if the state interest in a fair trial  overrides the right of public and press to attend.

o Globe Newspaper v. Superior Court 

▪ A Massachusetts law automatically closed all trials involving a sex crime against  a minor.

▪ Globe petitioned to get access to the courtroom during these trials. ▪ SCOTUS said that the law was in good interest, but judges can't automatically  close trials involving sex crimes against minors. Must be on a case-by-case basis. ▪ In most cases, juvenile proceedings are presumed to be closed though. o Press Enterprise v. Riverside Superior Court (Press Enterprise I) 

▪ Judge closed off the jury selection to press in order to protect a fair trial and the  jury’s privacy rights.

▪ SCOTUS said jury selection is part of trial process and is traditionally open. ▪ SCOTUS created 4-part standard to justify closure of jury selection 1. Specify overriding interest to protect fair trial and jury privacy. 

2. Establish that the only way to protect those interests is to close jury  selection.

3. Document in writing why closure is essential to protect these interests 4. Closure can only last as long as it is necessary. 

o Press Enterprise II 

▪ Pretrial hearing made to determine probable cause. 

▪ A CA nurse murdered 12 people by using lidocaine. 

▪ Judge closed the pretrial hearing because there was so much publicity. ▪ Defendant must provide specific evidence that an open court room would  prevent a substantial probability of endangering their right to a fair trial. ▪ Judges must consider whether alternatives to closure could protect defendants'  rights; the closure must be as short as necessary to ensure fair trial.

o Nebraska Press Association v. Stuart 

▪ Guy murdered a family. Judges on case ordered news media to not publish  information gained during pretrial hearing.

▪ SCOTUS said prior restraints are only constitutional if high probability that  publication would restrict fair trial.

▪ Developed 3-part test to determine: 

▪ Gag orders on media are presumed unconstitutional unless all parts of 3-part  test are met:

1. Nature and extent of pretrial news coverage is prejudicial 

2. Whether measures other than a gag order would mitigate the effects of that  publicity (Shepard v. Maxwell)

3. How effective a gag order on the press would be in diminishing the effect of  pretrial publicity (heavy burden to prove)

o Gentile v. State Bar of Nevada 

▪ Gentile was a defense attorney with a mafia client. 

▪ Said during press conference that people confessing against his client were paid  by cops.

▪ State bar had strict rules about what lawyers could and couldn't say. 

▪ Lawyers are officers of the court and must act with care. Gag orders are ok if  they deserve it.

▪ Lawyers are news sources that can be gag ordered. 

Chapter 11 — Protection of News Sources, Notes, and Tapes 

• Questions:  

1. Can journalists be forced to testify in court?  Can they protect their news sources, notes  and tapes?  Under what circumstances?

o Yes, they can be forced to testify. Court orders can force people to testify in court. o Yes, they can protect their sources, but they will go to jail if they refuse to cooperate (held in contept of court). This is always an option.

2. What did the Court say about a reporter’s privilege in the Branzburg v. Hayes case? o No First Amendment protection in this case. Branzburg had to testify. 

o Plurality said news gathering, including confidential sources is protected (so limited  protection in other cases).

3. Where did the First Amendment limited privilege that protects journalists come from? o The limited privilege that protects journalists in the First Amendment came from the  dissenting opinion of the SCOTUS justices in the Branzburg v. Hayes case.

4. What is the Branzburg test and how does it work?

o The Branzburg test provides a qualified privilege to reporters "a shield."  

o But government can overcome this privilege if they prove all 3 things: 

1. Reporter has information "clearly relevant" to case 

2. Info cannot be obtained by alternative means 

3. Compelling and overriding interest in info 

o Courts can almost never demonstrate all 3 things. 

o Therefore, they rarely subpoena reporters to testify. 

o There is no federal shield privilege.  

5. Is the privilege widely recognized and accepted by courts?

o No. Courts disagree on if or how a privilege exists—mostly because the privilege is  gathered from a dissenting opinion and there is no precedent to follow.

6. What are shield laws?  Why are they necessary?

o Courts disagree on if or how a journalist's privilege exists, so 39 states, including Florida,  adopted shield Laws - a statute protecting journalists.

o There is no federal shield law—only states have them. 

7. Is there a federal shield law?  What’s the current state of protection for journalists again  federal subpoenas?

o There is NOT a federal shield law. 

o Currently, state laws protect journalists but feds could still come after journalists if they  had federal information.

8. What does Florida’s Shield law say?

o A professional journalist has a qualified privilege not to be a witness concerning the  identity of any source obtained while actively gathering news, or to disclose that  information.

o To overcome this privilege, you have to prove the 3-part Braznberg test.

9. Can confidential sources sue the media when they break their agreement and disclose  their names?

o Yes. When newspapers "promise" confidentiality, they create a contract and can be  sued if they violate that contract.

o Cohen v. Cowels 

10. What is the Free Flow of Information Act? Will it pass Congress soon?

o The Free Flow of Information Act is an attempt by Congress to pass federal shied laws. o It is not likely to pass. 

o See the Espionage Act, Wikileaks. 

11. What is the Dendrite test, and when is it used?

o Plaintiff must make an effort to notify anonymous poster of an application for disclosure o Gives them the opportunity to disclose their identity before official proceedings  occur  

o Plaintiff must identify allegedly defamatory statements  

o They have to go through the process of determining if a statement is  

defamatory to do this

o Plaintiff must provide evidence to support cause of action, including harm incurred  o Court must balance First Amendment rights against plaintiff’s rights

o Was not a SCOTUS opinion, so it isn't a binding precedent

• Important Cases:

o Branzburg v. Hayes 

▪ Branzburg was forced to testify. 

▪ SCOTUS said no First Amendment protection in this case, but limited protection  in other cases. Developed 3-part test.

▪ First Amendment protects journalists right to withhold names unless 

government satisfies 3 things to overcome privilege:

1. Reporter has information "clearly relevant" to case 

2. Info cannot be obtained by alternative means 

3. Compelling and overriding interest in info 

▪ Courts can almost never demonstrate all 3 things. 

▪ Therefore, they rarely subpoena reporters to testify. 

o Cohen v. Cowles 

▪ Press can be sued for braking confidentiality promise. 

▪ PR guy Cohen working on a political campaign revealed info about his client's  opponent.

▪ Cohen gave info to reporter in confidentiality. They published his name anyway. ▪ Cohen sued and won. 

Chapter 12 — Access to Information 

• Questions:  

1. What does the Constitution (the First Amendment) say about access to information? o First Amendment does protect the right to PUBLISH info. 

o However, there is NO First Amendment right to OBTAIN info beyond access to criminal  trials.

2. Why is freedom of information important?

o To hold government accountable, protect against corruption. To be informed about  public health, product safety and climate change.

3. Does the First Amendment guarantee the right of access by the press and the public to  courts?

o Yes. Public and press have limited First Amendment right to criminal COURTS. Includes  jury selection, pretrial hearings. But NOT prisons!

o In all cases, juvenile and grand jury (Federal) proceedings are closed. 

o Richmond Newspapers v. Virginia 

o There is also NO First Amendment right to the government meetings and records—it is  created by statutes.

4. What are the limitations on gathering news and access to public and quasi-public  property?

o Public property: high First Amendment right (exceptions are crime scenes, natural  disasters)

o Quasi-public property (example: army base): NO First Amendment right o War zones: government can restrict access and censor news reports 

5. Where does the right of access to governmental records come from? o Right comes from STATUTES, NOT First Amendment. 

o Federal records: FOIA (Freedom of Information Act) 

o State records: statutes (FL public record law). 

6. What is the Freedom of Information Act?  Who can use it?  When would you use it?  What  type of information is covered by FOIA (hint:  Which federal entities are excluded?)?   What information is exempt (hint:  focus on exemption we discussed in class)? o What you use to gain access to FEDERAL RECORDS, not meetings. 

o Requires federal agencies to provide any person access to records, both paper and  electronic, unless the records fall into one of nine exemptions - where public interest  might outweigh disclosure.

o Subject to FOIA: The executive branch 

o NOT subject to FOIA: White House, Congress, Federal Courts 

o This does not include stuff like President's private information 

o Nine exemptions from FOIA: 

1. National Security (this is the one most commonly used) 

2. Agency Rules and Practices 

3. Statutory Exemptions 

4. Confidential Business Information 

5. Agency Memoranda 

6. Personnel, Medical and Similar Files (this is next most commonly used) 7. Law Enforcement Investigations 

8. Banking Reports 

9. Information about Oil Wells 

7. What is the Buckley Amendment and what does it protect? What is the Family Education  Rights and Privacy Act (FERPA)?

o The Buckley Amendment is the same thing as FERPA. 

o It is a federal statute that protects privacy. 

o Permits students over age 18, or parents of younger students, to see and correct their  "educational records."  

o Also prohibits federally funded educational institutions from releasing educational  records to the public

o Directory information is ok to release (address, phone number, email address), but not  grades or health information

8. What law gives you access to federal meetings?

o The Federal Sunshine Law, not the First Amendment 

9. What does the Florida Sunshine Law (Open Meetings Law) require?  What governmental  bodies are covered by the Florida Sunshine Law? When does the law apply? o "All meetings of any board or commission of any STATE agency or authority or of any  

agency or authority of any COUNTY, municipal corporation, or political subdivision... at  which OFFICIAL ACTS are to be taken are declared to be public meetings open to the  public at all times..."

o Applies to ANY gathering when 2 or more officials are discussing public matters.  o These matters must be discussed in public. 

10. What is a public record in Florida?  Are computer records public records? o All materials made or received by an agency in connection with official business which  are used to "perpetuate, communicate or formalize knowledge."

o All documents, papers, letters, maps, books, tapes, photographs, films, sound  recordings, data processing software or other material, regardless of physical form, or  characteristics, or means of transmission, made or received pursuant to law or  ordinance or in connection with the transaction of official business by any agency. o Yes, computer records are public records in FL 

11. How does someone get a public record in Florida? How much can they charge for a public  record in Florida?

o Someone can get a public record in Florida through the FL public records law. o They can only charge fees for the cost to get the information and the actual cost of  copying, not to exceed $.15 per page, $1 for certified copy.

o Clerk of the Court may charge $1 per page 

o Can charge for extensive use if you request a ton of pages. Have to pay staff to go  through all the paperwork.

12. Are there exemptions to the Florida Public Records Law? Where do the exemptions come  from?

o Yes. Almost 1,000 exemptions are specifically listed in statutes. Everything is a public  record unless it is exempt.

o Most exemptions come from lobbyists. 

o The burden is on the public agency claiming the exemption to prove it. 

o All exemptions must be specifically spelled out in the statute. 

13. Can records custodians be penalized if they refused to comply with the Florida Public  Records Law? With the Florida Sunshine Law (Open Meetings Law)?

o Yes, they can be penalized for refusing to comply with both laws.  

o Can be penalized with fines, prison, removal of office. 

• Important Cases:

o U.S. Department of Justice v. Reporters Committee for Freedom of the Press ▪ Computerized FBI "rap sheets" on private individuals are exempt from 

disclosure even though much of the info contained in rap sheets can be found in  public records.

▪ SCOTUS said there is a difference between a diligent public record search of files  throughout the country and a computerized summary located in a single  

clearinghouse of information.

o Procunier v. Pell

▪ Reporters claimed First Amendment right to interview specific California  prisoners. Prison officials said it made the prison decline and made celebrities  out of prisoners.

▪ California court reversed this right to interview specific prisoners. ▪ SCOTUS ruled that new restrictions on reporters' access to prisoners was  constitutional.

▪ Although the First and 14th Amendments prevent the government from  interfering w free press, Constitution doesn't require the government to provide  press access to info not available to the average citizen.

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