MC401 Media Law Test Three- Diane Bragg
MC401 Media Law Test Three- Diane Bragg MC401
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This 14 page Study Guide was uploaded by Sally Immel on Monday May 16, 2016. The Study Guide belongs to MC401 at University of Alabama - Tuscaloosa taught by Dianne Marie Bragg in Spring2015. Since its upload, it has received 8 views.
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Date Created: 05/16/16
1 MC401 Test Three Study Guide Final Exam: April 28, 2015 Chapters 9,10,11—Sources, court access Chapter 15—Advertising and Public Relations (Commercial Speech) Chapter 16—Telecommunications Regulation/Broadcast Chapter 13—Obscenity *In-class Notes *Book/ add ins Chapters 9-11: Sources, court access Shield Laws Most states have shield laws to protect journalists o More than 100 federal shield law bills have been introduced o None has ever been enacted o Protection in federal cases depends on jurisdiction guidelines and/or state shield laws Examples Mike Price UA football coach never coached a game and used the Alabama credit card at a strip club… In 2003, former Alabama football coach Mike Price sued Time, Inc. for defamation in a Sports Illustrated article about a strip club visit that led to his firing Price’s firing came after a night of drunken partying Alabama Shield Law o Covers people working in a “news-gathering capacity” for “any newspaper, radio broadcasting station or TV station” o Price claimed that Sports Illustrated wasn’t a “newspaper” and the Alabama law did not protect its reporters Court agreed (Time, Inc. settled with Price) (Price couldn’t talk about the settlement… went on a talk show and talked all about it… Time, Inc. took back their money!) International protection o In 2002, resulting from war crimes trial, the United Nations International Criminal Tribunal appeals court ruled in favor of a Washington post correspondent o Court ruled that a reporter can only be subpoenaed in a case where Info is vital to case 2 Info can’t be obtained… Federal Freedom of Information Act (FOIA) 1966 Designed to open up records and files long closed to public inspection Any citizen can make a FOIA request, not just journalists Interpretations: o Expansive—discovery of truth (full possible disclosure of government held documents) o Restrictive—disclose final government actions (not everything; safety of overall public interest) Cooperation varies among administrations Open Meetings The Sunshine Act of 1976 [Government in sunshine Act] o *Federal open-meeting law o Time, Place, and subject of meetings must be announced at least one week in advance o Prohibits informal discussions and decision-making States have specific open meeting and record laws Alabama Legislative members met secretly on private school tax credit bill—illegal—establishment of act *Applies only to bodies whose members cure appointed by the president Privilege Common-law privilege- for protecting professional/ client relationships does not generally extend to journalists Privilege- can vary and reporters can be compelled to testify: o To ensure a fair trial in a criminal case o When they witness a crime… not just second-hand knowledge Privilege of protection is based on three factors: o 1. Type of proceeding—least protection for testifying before a grand jury o 2. Type of information sought—published or unpublished, confidential or non-confidential o 3. Who is claiming the privilege—legitimate journalists? Wikileaks? Promissory Estoppel Promissory Estoppel- The legal principle that a promise is enforceable by law when the promisor makes a promise to the promisee who relies on it to his or her detriment Terms Stare Decisis- “Let the decision stand” – precedent 3 Voire Dire- To tell the truth (when each juror is questioned prior to being impaneled) Change of Veniremen- drawing a jury from a distant community in order to find juror who have heard little or nothing about a criminal case or criminal defendant Change of Venue- Moving a trial to a distant community in order to find jurors who have not read or viewed prejudicial publicity about the defendant Jury Admonitions- instructions Sequestrian- stay there until the case is over so you won’t be influenced by newspapers/ outside sources Gag Orders/ Courtroom Closures- A restrictive court order that prohibits all or some participants in a trial from speaking about a case or that stops publications ad broadcasting stations from reporting on certain aspects of a case—no one can talk about the case until the verdict is reached Chapter 15- Advertising and Public Relations (Commercial Speech) False Advertising claims forced the Federal Trade Commission to begin regulating advertising in 1914 Advertising- probably the most regulated form of speech and press o Is policed by the industry itself o Regulated for children o Example—Jet Blue was fined Volume (how loud commercials can be) Activia was sued for saying “all of your digestive issues will go away by eating one activia a day” Deceptive advertising o Test False Advertising: 1. What does the act convey? 2. Is it false or misleading? 3. Does this measure injure the plaintiff? o The Lanham Act (the federal trademark protection law): Allows redress for competitive harm Tried to stop unfair competition Created to stop unfair competition in the marketplace Can’t lie about your product or a competitor’s product o The plaintiff… (A commercial entity rather than a consumer… must prove injury) o Puffery ads are not considered deceptive 4 o FTC Concerns: Deceptive ads must contain representations, omissions practices that are: Material (health, safety, quality, etc.) Likely to mislead with falsehoods or impressions Likely to mislead a “reasonable consumer” o Example- Kournikova V. Penthouse Magazine Weight watchers V. Jenny Craig o Pg. 596-599 Central Hudson Test Established in Central Hudson Gas & Electric Corporation V. Public Service Commission case to help determine the “Commercial speech doctrine” Central Hudson Test o Test law regulation for commercial speech (Political speech is tested under Strict Scrutiny) o 1. The government can ban advertising that is: False, misleading, deceptive, for unlawful goods/services No sales of whites o 2. The government must assert a substantial state interest to justify the regulation Example- Coyote Publishing V. Miller o If two requirements are met then the government must show that… o 3. The regulation directly advances the state interest; Baltimore bans alcohol ads near playground… o 4. The government must show a reasonable fit between the state interest and the regulation. o In essence, is it narrowly tailored… several states have had trouble banning billboards for adult businesses… content based… Insider Trading Insider- someone with company information that is not public o Example- Martha Stewart Insider info cannot be used for personal gain before it is public knowledge PR practitioners can be held accountable if company reports contain inaccurate, misleading, or incomplete statements about the company Administrative Law Administrative Laws and Regulations 5 o These laws and regulations are in place to correct “market failure” o Know which federal administration agencies affect the practice of public relations and their function: Securities and Exchange Commission (SEC) Food and Drug Administration (FDA) Federal Trade Commission (FTC) Federal Communications Commission (FCC) Tort Law affecting public relations o 1. Tortious interference Texaco V. Pennzoil (1988) o 2. Unfair Competition Passing off—misrepresentation Malice in trade—attempting to drive out of business Running people out of business by telling false info (lying) o 3. Failure to disclose—warnings on medicine, etc. “common sense defense” Contract Law 1. Ownership of Work & Proposals 2. Letter of Agreement/Employment contracts 3. Hold- Harmless clauses: no liability for damages or injuries caused to the person signing the contract 4. No-compete clauses 5. Confidentiality agreement 6. Consent agreements/release forms 7. Promissory Estoppel—a false statement results in an action by someone who can only find justice if the statement is treated as a promise Commercial Speech Had no first amendment protection Supreme Court definition—speech that does “no more than propose a commercial transaction”; expression that is “solely motivated by the desire for profit” Central Hudson Regulated by the FCC Public interest According to FCC o Competition o Diversity o Localism ***PICON—meeting the Public Interest, Convenience or Necessity o All the rules and regulations applying to broadcasting 6 o Developed the concept of “public interest” What is the public interest? o What the public wants? o What the public needs? Chapter 16—Telecommunications Regulation/Broadcast Broadcast regulation rationales o Spectrum society- a physical limitation of frequencies on the radio unlike the economic limitation of newspapers o Public Trusteeship- broadcasters are to act in the public interest o Pervasiveness- radio and TV are ubiquitous—they are omnipresent o Special impact- broadcast has a greater impact- particularly on children Fairness Doctrine NOT FAIR USE DOCTRINE! The FCC stated that broadcasters must: (1940s) o 1. Devote a reasonable percentage of their airtime to public issues discussion o 2. Present contrasting views on controversial issues that are of public importance The fairness doctrine abandoned—FCC stopped enforcing in 1987 o 1987—FCC concluded that the fairness doctrine should be rescinded… in part because of the proliferation of broadcast outlets, ensuring that most viewpoints would be heard o 1989—the U.S Court of Appeals for the D.C. Circuit upheld the FCC’s decision to end the Fairness Doctrine, said that it was within their rights to abandon it o Does not exist now, which is why you are able to have talk shows like Rush Lambaugh without having to have liberal counter argument and notification that an attack would be occurring Communications Acts Equal opportunity Rule Section 315 of the Communication Act of 1996 o Candidates for the same office have the same opportunity to purchase broadcast time at a time when they are most likely to attract the same type and size of audience (example—Super bowl ads) o Section 315 requirements 1. Qualified candidates Publicly announced candidacy (two or more) 7 Meets legal qualifications for the office (no Waka) Must meet criteria to be on ballot 2. Time requirements—stations can determine when segments will run and their length, Stations do not have to inform a candidate if his or her opponent has airtime 3. Only a “positive” presence is a use Does not have to be “political” to be a “use” (Reagan movies) 4. Exempt programming 1. Appearance on a regularly scheduled newscast (Entertainment Tonight & Today Show) 2. Interviews and 3. Documentaries 4. On-the-set coverage of news events You cannot use 315 if it is an appearance on a bona fide or legit newscast Communication Acts o Wireless Ship Act of 1910- First law that regulated devices, such as radios, that used the electromagnetic spectrum. Ships must have wireless equipment and radio operators on board Did not say that someone needed to be working 24/7 Example—Titanic o Radio Act of 1912- US Secretary of Commerce granted station licenses and assigned frequencies o Radio Act of 1927- established the Federal Radio Commission (FRC) to act in the “public interest, convenience, or necessity”- FCC Standard today Began government control of radio broadcasting to the public o Communication Act of 1934- Established the Federal Communications Commission (FCC) Has power over “radio and wire communication services” Licensing Most important function of FCC In addition to getting a license for a new station, broadcasters have to get everything approved by the FCC Must be renewed every 8 years Chapter 13—Obscenity What is obscene? 8 o Justice Potter Stewart—“I know it when I see it” o Jocobellis V. Ohio(1964) is where this term came about The Miller Test The purpose of the Miller test is to use a broader definition of obscenity so they can attempt to block the sale and distribution of erotic material while still being careful so as not to unconstitutionally ban legal material as well. Miller Test basic guidelines: o 1. The average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to the prurient interest… shameful interest… an unusual or inordinate interest in sex. This requires the fact finder to apply local (usually state) standards rather than a national standard. o 2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. Is based on local community standards. (Supreme Court rules that only so-called hard-core porn can be found patently offensive. o 3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value… (Usually requires a national standard) Protecting children o Children’s Internet Protection Act (CIPA) 2001- libraries with federal subsidies must install internet filters on computers o FCC- most violations often combine humor with patently offensive descriptions o The Broadcast Decency Enforcement Act of 2005— increased the penalties for violations of broadcast prohibitions of obscene, indecent and profane material Janet Jackson nip slip 2 Live Crew Case Law in Brower County, FL that prohibited people from listening to 2 Live Crew (Obscene) 2 Live Crew booked an event in Brower County, FL Sherriff got dozens of his deputies tickets to go and film 2Live Crew to “Catch them in the act of being obscene” o Charged 2 Live Crew and brought it to court o The tapes had been damaged by the time they showed them in court—not sufficient evidence—case was thrown out o Florida won—overturned by supreme court (reversed the decision) 2Live Crew won the case. You had to be 21 to go to the concert and everyone was there of their free will 9 Comstock Law The Comstock Act of 1873 o Anthony Comstock created the “New York Society for the Suppression of Vice” to police public morality o Comstock influenced congress to pass the federal Anti- obscenity law of 1873- the Comstock law (still exists in a modified form) o Comstock became a “special agent” for the US Post Office to enforce the law. The Comstock Law o It is illegal to use the U.S. postal service to mail any “obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print or any other publication of an indecent character….” Including medical anatomy textbooks o Under the law, contraceptives were obscene and illicit o Margaret Sanger was arrested in 1916 for opening a birth control clinic o In 1936, a federal appeals court ruled that the government could not interfere with doctors providing contraception o Playwright George Bernard Shaw coined the term “Comstockery” for censorship based on supposed obscenity or immorality o 1996—part of the Telecommunications Decency Act amended the Comstock Act to ban abortion related information on the internet From earlier chapters: Know actual malice Actual malice—Knowledge of falsity or reckless disregard for the truth. It is required for public figures/ officials The First Amendment- Memorize it: “Congress shall make no law respecting an establishment of religion, or prohibiting thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The Doctrine of Incorporation: The Free speech and free press clauses of the First Amendment have been th “incorporated” through the 14 Amendment due process clause as fundamental liberties to apply to state and local government entities and officials, not just to “Congress” Strict Scrutiny, The O’Brien test: 10 Strict Scrutiny The standard of judicial review for contentbased statutes, requiring the government to prove that it has compelling interest (an interest of the highest order) in regulating the speech at issue and that the means of serving that interest are narrowly tailored such that no more speech is restricted than is necessary to serve the allegedly compelling interest Intermediate Scrutiny/ O’Brien The standard of judicial review for contentneutral laws, such as time, place, and manner regulations, that requires the government to prove that the regulation is content neutral; justified by substantial interest; not a complete ban on communication; and narrowly tailored Constitutional Theories: 1. Absolutist Theory o The First Amendment presents an absolute or complete barrier to government censorship. o No Law shall abridge freedom of expression. The government cannot censor the press for any reason. There are no exceptions, no caveats, and no qualifications. o A majority of the Supreme Court never has adopted an absolute position o Justice Hugo Lafayette Black (UA grad) 2. Ad hoc balancing Theory o Freedom of speech and press are two important human rights o Often conflict—responsibility of the court to balance the freedom of expression with other values (Example: right to freedom of expression must be balanced with the need for secrecy in the military) o More of a strategy on a casebycase basis—leads to uncertainty which creates a “chilling effect” because we don’t know exactly what our rights are o Rarely invoked as a strategy these days except by judges unfamiliar with First Amendment law 3. Preferred position balancing theory o Some constitutional freedoms are fundamental to a free society and consequently are entitled to more judicial protection than other constitutional values are. o Presumes government speech and press limits are unconstitutional 11 o Places burden of proof on government (as in prior restraint) (gov’t must prove that their censorship is justified and is not a violation to the First Amendment) 4. Meiklejohnian Theory o Alexander Meiklejohn (18721964) “means to an end” o Free expression related to selfgoverning is absolutely protected o Distinguishes public or political speech from private speech. How do we define political speech? o ***Political speech is most protected—say what you want— there cannot be government interference with such expression o You get what you need to be an educated citizen 5. Marketplace of ideas Theory o “The truthseeking rationale for free expression” o Can be traced back to John Milton, Paradise Lost o Common condemnations are that much shoddy speech, such as hate speech, circulates in the marketplace of ideas despite its lack of value and that access to the marketplace is NOT equal for everyone o The premise of this idealistically free and fair competition of ideas is that truth will be discovered or, at the very least, conceptions of the truth will be tested and challenged o Supreme Court Justice Oliver Wendell Holmes Jr. “… The best test of truth is for it to be accepted in the competition of the market.” –Abrams V. United States 6. Access Theory o “Freedom of the press belongs to the man who owns one” –A.J. Liebling o Access to the metaphorical marketplace of ideas is NOT equal for all, but is skewed in favor of those with the most economic resources o Publications should open their pages to the ideas of the readers— if not, the obligation falls upon the government to force access to the press o Supreme Court unanimously rejected the access theory in 1974 —The First Amendment does not give the government the right to force a newspaper to publish the views or ideas of a citizen o Fairness Doctrine for broadcast ended (1987, 2011) 7. SelfRealization Theory o Speech is important to an individual regardless of its impact on politics or its benefit to society at large o John Locke 12 Checking Valve Theory o Vincent Blasi o “Watchdog function”—the press checks the power of government o “… Abuse of government is an especially serious evil—more serious than abuse of private power…” Stable Change Theory o Thomas Emerson (19081991) o The system of Freedom of Expression (1970) o Free Expression can act as a safety valve—suppression of speech may cause violence o “… The progress of a society can take place without destroying the society” – reform or revolution Individual or SelfFulfillment Theory o John Locke (16321704) o Two treaties of civil government—people have “natural rights” o Suppression of speech suppresses an element of humanity o “New opinions are always suspected, and usually opposed, without any other reason, but because they are not already common o There will always be resistance to new ideas Its importance in cases such as NYT v. Sullivan, and concepts of public figures, public officials, etc. *see case list The Supremacy clause (Article VI, Sec. 2) The Supremacy Clause -“The constitution, and the laws of the U.S. are the supreme laws of the land.” This clause establishes that the federal constitution and federal law, generally, take precedence over state law, even state constitution The Fourteenth Amendment The amendment addresses citizenship rights and equal protection of the laws, and was proposed in response to issues related to former slaves following the American Civil War. The Doctrine of Incorporation Difference between public officials and public figures The Free speech and free press clauses of the First Amendment have been “incorporated” through the 14 Amendment due process clause as fundamental liberties to apply to state and local government entities and officials, not just to “Congress” 13 The Doctrine of Prior Restraint Example—Pentagon Papers Prior restraint- pre publication censorship that forbids publication or broadcast of certain objectionable material o Prior restraint rules (in book): Prior restraints on speech by the government are presumptively unconstitutional. Burden falls on the government to prove in court that a prior restraint is justified. The government’s burden is high, with courts often requiring it to prove there is a compelling interest or an interest of the highest order justifying the restraint The scope of any prior restraint (how broadly the restraint is drafted and how much speech is restrained) must be very narrow, so as not to stop publication of any more speech than actually is necessary to effectively serve the government’s allegedly compelling interests Speech that falls outside the scope of First Amendment protection (obscenity, child pornography and false advertising for instance) can be restrained by the government, but only after a judicial proceeding in which a court has determined that the speech indeed is not protected Libel o Defamation, or libel is what lawyers call a tort, or civil wrong Defamation law includes libel AND slander. All published communication is treated as libel. Main source of lawsuits in mass media Mainstream press (newspapers, magazines, online sites) have more libel protection from the First Amendment than Facebook, blogs, etc Most libel suits are settles because of lack of precedent in cases (and the cases are long and expensive) Is traditional common law with aspects of statutory and constitutional mixed in Any living person can sue for libel. For the deceased, families can do it on their behalf. (If a living person dies before the case is settles, you have a survival statue which allow the case to continue) Can damage another person’s reputation (example- “you have aids”) Can hold a person up to ridicule, scorn, hatred, contempt, or spite There must be proof the individual’s reputation was harmed (ability to conduct business) 14 Can cause someone to be shunned and affect the way others view a person (example- Daphne, AL Iranian Toyota dealership owner) Defamation by electronic means is usually considered libel Online Service Providers (OSP) are immune from defamation… Private persons—negligence: failure to exercise reasonable care Private Persons—involving “matters of public concern”. Actual malice Public officials and public figures—actual malice Copyright- 70 years after last living author Justices of the Supreme Court (9) Sonia Sotomayer Stephen Breyer Samuel Alito Elena Kagan Clarence Thomas Antonin Scalia Anthony Kennedy Ruth Bader Ginsburg John G Roberts, Jr. (Chief Justice)
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