Exam 2 Information - COMM4303
Exam 2 Information - COMM4303 COMM 4303
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This 20 page Study Guide was uploaded by Ailia Owen on Saturday April 4, 2015. The Study Guide belongs to COMM 4303 at University of Houston taught by Steven Earl Kirkland in Spring2015. Since its upload, it has received 258 views.
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Chapter 5 Libel 4415 449 PM Libel an untrue statement that causes harm Traditionally libel was printed defamation and thought to be more harmful then slander print could reach a larger audience then speech at the time 0 Changed after NYT v Sullivan 0 Common law someone has to be living to file a libel suit 0 Family members cannot file a suit on behalf of a departed member 0 Trade libel a product rather then a person has its reputation damaged Engler v Winfrey Businesses may sue for libel government entities cannot 0 An individual government official may sue for libel but not a local state or federal government body 0 Civil crime no longer has criminal implications Actual Malice A requirement in libel cases against public officials that a publisher acted with falsity Reckless disregard for the truth 0 New standard in libel cases since NYT v Sullivan Defamation Holding someone to ridicule scorn or contempt to a respectable and considerable part of the community 0 Then Libel and slander are forms of defamation o Defamacast libel over broadcast radio that reaches a large audience Term brought about when the line between slander and libel blurred due to a broadcasts ability for slanderous statements spoken defamation to reach an audience as large as libelous statements written defamation Now libel and defamation are interchangeable Slander an untrue statement that causes harm Traditionally slander was spoken defamation thought to be less harmful then libel Criminal Libel An oldfashioned crime in which a publisher could be sued for libel by the government 0 Does not exist today 6 REQUIREMENTS OF A LIBEL CASE 1 Identification Plaintiffs must show that they were identifiable from libelous material 0 Does not have to state their name because context circumstance or association can reveal the real person 0 Adequate context has to be provided to identify a certain individual 0 Job title 0 Descriptive qualities 0 Courts will have witnesses testify their belief of defamatory statements being made about plaintiff Misidentification individual s that are identified that the publisher did not intend to o A result of Misidentifying someone thinking the plaintiff is someone else Insufficient description Identifying a real person that was meant to be fictional Leaving out personal data 0 To avoid this publications now include name with middle initial age address andor photo 0 Group identi cation individuals from groups can claim identification when defamatory statements are made about the group as a whole 0 No clear size limit various precedents set Largest group size successful in asserting identification 60 football team 2 Defamatory Language Plaintiff s must show that a statement asserts an untrue fact that would cause harm to their reputation in the mind of right thinking peoplequot 0 Usually implicating someone in unlawful or immoral acts 0 Sexual morality slut whore cheater 0 Criminal murderer rapist 0 Professional incompetency doctor as a quack o Aliments venereal diseases AIDS Libelproof a person whose reputation is so tarnished that it is impossible to make a libelous statement against them nothing left of their reputation to protect Asserting fact not opinion or humor Libel Per Se words in and of themselves are damaging o Prima fascia at first sightquot 0 Murderer not context needed as to what that means Libel Per Qoud words or phrases that require contextualization in order to identify the harm 0 Crazy mentally incompetent or unconventionaldivergent Context in which the statement was made is needed to determine if it was defamatory Gertz v Wech minimized the distinction between the 2 terms Innocent Construction Rule A rule used by some courts to interpret libelous statements that might have multiple interpretations according to the most innocent interpretation or one that most favor s the defendant 3 Falsity a defendant cannot be help liable for defamation unless the statement made was false 0 True statements cannot be defamatory Alleged calling someone an alleged murderer can still be a defamatory statement if 0 They are suspected of murder but haven t been charged 0 I thinkI believe prefacing a statement to make it seem like an opinion 0 Doesn t make it not defamatory 0 An opinion has to be subjective as a whole No part of the statement can contain assertions that can be proven true or false objectively 0 Ex I think Betty White is a bad actress subjective 0 Ex I think Betty White is a murderer objective 0 According to newspapers can still be held liable for libel even when quoting a person who made the original statement 4 Publication a defamatory statement must be made public 0 Any dissemination of a defamatory statement not strictly in print 0 A medium newspaper bulletin board etc can be held liable for libel depending on the amount of control exercised over the content 0 Newspapers can control content by accepting or rejecting ads can be liable they have the final say on what is printed 0 Bulletin boards No one person is in charge of accepting or rejecting information and can t be liable Statue of limitations a plaintiff must file a suit within a certain length of time from the original publication 0 Usually 12 years 5 Fault 0 Before NYT v Sullivan 0 Strict liability a speaker is strictly responsible for damage caused by their expression 0 After NYT v Sullivan 0 Breathing space publication s about public figures need more room for honest mistakes in the interest of the marketplace of ideas 0 Considerations for actual malice o The source information coming from a reporter reliable vs an anonymous tip unreliable 0 Deadline pressure publications running on deadlines may not have time to check sources 0 Believabiity o Incentive monetary gain can be achieved by a good controversial story 0 Categorizing plaintiffs in terms of having to prove 0 Actual malice Public officials government officials responsible for exercising authority or discretion in the affairs of state a Candidates for office and elected officials n Unelected public officials police Public gures after Curtis Publishing v Butts people who can command public attention instantly a Limited purpose public figure people who voluntarily inject themselves into a matter of public controversy in order to influence the outcome protest leaders 0 Must only be for a limited range of issues a Allpurpose public gures world famous people in society Public figures not included in defamation a Wide open public debate a No fear chilling effect I Should have more access to the media a Public gures should expect to be talked about 0 Negligence breach of a duty that results in a reasonably foreseeable harm behaving unprofessionally Failure to exercise reasonable carequot what an average member of a community would have done Often the only way for private figures to mend their reputation is through lawsuit but public figures have easier access to the media 6 Damages Not a requirement until after NYT v Sullivan 0 Actual damages compensatory monetary compensation to remedy losses suffered by plaintiff 0 Physical or emotional Punitive damages an attempt to punish the defendant for wrongdoings to deter them or anyone else from committing an act 0 Not awarded to private figures unless actual malice is proved Summary Judgment A final judgment for one party without trial when a court finds either no material fact is in dispute or when the law alone clearly establishes one party s claim 0 Judge sees no chance for success dismissed before trial 0 Ex Newspaper writes an article correctly reporting about a person driving under the influence DEFENSES FOR LIBEL assuming all 6 requirements are met 0 Privilege Defendant asserts a justification for defaming plaintiff o 3 branches only applicable when in place of work Legislative In deliberations of government dealings Congressional members can freely discuss thingspeople without fear of libel Judicial testifying witnesses have absolute privilege Executive police cannot be sued for libel accusing someone of breaking the law when making an arrest reports are privileged as well 0 Absolute privilege a statement that can never be libel cause of action 0 Qualified privilege a statement that may or may not be the basis for a libel cause of action based on the facts 3rd party publications reportingquoting from statements that are absolutely privileged are protected as well so long as the reporting is accurate and responsible a Newspaper fairly and accuratelyquot reporting the contents of a police report even if it contains harmful untruths 0 Fair Comment to protect the speaker when voicing opinions that could potentially cause harm to an individual book review food critic 0 Protected from libel action when the provider of commentarycriticism is expressing opinions relating to topics that are appropriate for public comment and are not malicious in intent 0 Neutral Reportage so long as a medium accurately recounts all sides of an argument it acts as a neutral conveyor of information and should not be responsible o Retractions a publication retracts a statement after realizing it is false This does not protect from libel but it does potentially reduce the amount of damaged awarded to plaintiff CH 5 Case Briefs 4415 449 PM NYT v Sullivan 1964 Montgomery AL NYT printed an ad requesting donations for MLK and free rights 0 Claims of o Arrestsdiscrimination 0 Police misconduct Do not specify names O Sullivan had to find people that said the ad was referring to him 0 Sullivan police commissioner filed libel suit 0 False statements damage reputation o Proved false and exaggerated statements 0 Won in Alabama NYT guilty false info 0 USSC unanimous Alabama does not have the right to punish NYT for advertisement chilling effect 0 Claims of defamation ad as a whole was exaggerated and false facts 0 Student protests Sang a song different from one on ad Not expelled Not excluded from cafeteria Weren t locked out o MLK arrests 7 ad v 4 actual times 0 State defamation law at the time required plaintiff to prove 0 Publication was in print 0 Identity talking about you 0 Defaming statement don t have to prove that it actually did anything REQUIREMENTS ADDED AFTER NYT v SULLIVAN CASE 0 Actual malice reckless disregard for the truth 0 Damage reputation o Falsity Engler v Winfrey Cattle ranchers in Texas claimed that Oprah Winfrey s nationally televised show violated the Texas False Disparagement of Perishable Food Products Act by implying that consumption of Texas beef lead to mad cow disease 0 5th circuit court determined that she did not knowingly make false statements Gertz v Welch Minimized the distinction between libel per se and libel per qoud 0 Now we examine the entire context of the communication Chicago police Nuccio is convicted of murder Gertz attorney hired by the victim s family to perpetrate civil litigations against Nuccio An article in the American Opinion alleged that Nuccio s trial was party of the Communist Parties conspiracy to discredit the police 0 Falsely stated Gertz had arranged Nuccio s frame up 0 Implied Gertz had a criminal record 0 Labeled him a communistfronterquot Issue Does freedom of the press provide privilege against liability for defamatory statements made about people who are not public figuresofficials 0 Just because the defamatory statements were an issue of public interest does not mean that Gertz is to be considered a public figure press is NOT privileged Curtis Publishing v Butts 0 Athletic director Butts was defamed when the Saturday Evening Post alleged that he had fixed a football game between University of Georgia and University of Alabama 0 Source of information was a tip from a convicted check forger o The paper had adequate time to fact check 0 The Post was anxious to change its image A big story would do that Responsible for changing Public officials to Public figures 0 Public figures can still recover damages if they prove that their reputation is actually harmed Butts had never had an accusation of wrongdoing Rosenbloom v Metromedia 1971 expanded actual malice standard to apply to anytime a case involved a matter of public interestconcern Rosenbloom sued Metromedia because they broadcast news reports of his arrest for possession of obscene literaturestories concerning his lawsuits against officials 0 He asserted that the magazine he distributed was not obscene and was seeking injunctive relief from police interference from his business Acquitted of police charges Sought damages from Metromedia 0 District Court awarded special and punitive damages 0 Court of Appeals reversed said NYT standard applied even though he wasn t a public figures 0 USSC upheld reversal Guccione v Hustler Guccione publisher of Penthouse and Larry Flynt publisher of Hustler in a grudge matchquot 0 Guccione sued for libel when Hustler publicized that he had a live in girlfriend while still married 0 Won at trial and awarded 1 million in nominal damages and 16 million in punitive damages Federal district court reversed the judgment because the statement was substantially truequot and Guccione was libelproof in matters of adultery Chapter 6 The Right of Privacy 4415 449 PM Penumbra right to privacy a shadowy indefinite or marginal area 0 Although the Constitution does not explicitly contain a right to privacy courts recognize a penumbra of the right in these amendments 0 1st right of association 0 3rd privacy of homes from quartering soldiers 0 4th search and seizure free from intrusion of government surveillance 0 5th safeguard to selfincrimination 0 9th overarching protection of all rights to be retained by the people 0 10th any power not delegated to US Congress to each state s constitution and jurisprudence 10 states constitution guarantees the right to privacy aside from the penumbra o The right to privacy is recognized by most states in statute case history or constitutional mandate Right of Privacy privacy rights include the broad categories of rights that flow from the right to be personally selfgoverning and the right to be left alone 0 Property as well as an individuals solitude should be left alone Restatement second of Torts outlines liability for violating privacy with 4 torts to privacy to be rewarded damages Intrusion newsgathering tort Protects people s private space and data intentional personal invasion 0 Since it protects against intrusion publication is not required for damages to be awarded Offense occurs when information is gathered not pubHshed a Reporter recording a conversation when the other party is not aware not in public settings speech 0 Often concerns hidden camerasmicrophones 0 Visual intrusion intrusion beyond the media Trespass protects people from interference with their land person or possessions secret or surprise Fraud intentional material misrepresentation of fact by the defendant that the plaintiff relies on to their detriment Must show a reasonable expectation of privacy location of intrusion is important to the claim Public Disclosure of Embarrassing Private Facts protects people against publication of private facts about them that are not newsworthy and are so intimate as to outrage the public s decency 0 Unless the facts are deemed newsworthy especially if crime is involved Appropriation misappropriation protects people from having their likenesses name or image used for commercial gain in advertisements without their permission 0 Right to Publicity protects famous people who wish to protect their likeness voice or image from others exploiting it for commercial gain even after death unlike defamation Parallel to Appropriation False Light plaintiff must show that defendant s publication with actual malice placed them in a false light that would be highly offensive to a reasonable person 0 Not recognized in all jurisdictions 0 Similar to defamation have to prove identification and publication but Do not have to prove harm o Journalistic embellishment stretching the truth to an extent that it is personally offensive Chapter 6 Case Briefs 4415 449 PM Bartnicki v Vopper 1993 0 Gloria Bartnicki chief negotiator for teacher s union of Wyoming Valley West School District near Scranton Pennsylvania 0 A radio broadcast played a private phone call between Bartnicki and Anthony Kane Jr teacher union president Sued WILK and WGBI and others for airing the tape 0 The tape was delivered anonymously to a local taxpayer s group which was then given to Vopper radio announcer USSC found broadcast of tape to be in violation of the Electronic Commission Privacy Act ECPA 0 But Vopper was within his rights to air the newsworthy information Pearson v Dodd 1969 0 Drew Pearson and Jack Anderson Washington DC columnists received illegally obtained documents from a senator s office about Senator Dodd s Connecticut accusing him of repurposing campaign funds for personal use based on the documentation of previous employees 0 Dodd was beat for reelection 0 His son Chris Dodd was elected Ruled no intrusion occurred because they did not participate in the illegal activity of obtaining the documents 0 They just reported on it Zacchini v ScrippsHoward Broadcasting Company 1977 0 Ohio photographer filmed Hugo Zacchini s human cannon ball act and aired it on local TV news Zacchini who had asked the TV crew not film claimed it violated his right to publicity USSC compared Zacchini s argument in favor of publicity to be consistent with goals of patent and copyright laws that rewarded personal creativity with commercial gains 0 It gave less incentive for people to pay to see his act in person when they saw it on TV Hurt his potential profits Cox v Cohn Atlanta TV station aired personal details of the rape and murder of a 17 year old victim identifying her by name The victim s parents sued WTSBTV for invasion of privacy News media joined with Cox Communication asking court to ensure reporting on truthful facts that are obtained from open judicial records are protected since the information was obtained from a public hearing USSC upheld saying they cannot prevent potentially offensive material that is a matter of public record 0 Chilling effect Florida Star v BJF 1989 Rape victim in Florida whose name was made public when a reporter trainee found it through the county sheriff s police report Her name was mistakenly published and received threatening phone calls 0 Newspaper had its own rules in the publication of victim s names BJF sued paper for double victimization o Won state level USSC reversed because private facts that come from a public source are not liable when involved with a crime Chapter 12 Advertising 4415 449 PM Paternaistic the theory that it is beneficial to control usually by government regulations what consumers see and hear in order to protect them better then they can protect themselves The Central Hudson Test test used to determine the constitutionality of any law that limits commercial speech 4 Parts A result of the Central Hudson Gas and Electric Co v Public Service Committee Committee placed restrictions on ads encouraging energy use when there was a nationwide energy crisis Years after the crisis was over the laws were still in place Central Hudson opposed the ban on 1St amendment rights NY state court upheld the ban USSC overturned A formula for understanding whether any government entity is allowed to restrict advertising in a specific way NOT a test of whether an advertisement is legal IT IS the regulation that s being tested NOT the communication Is the commercial speech entitled to protection 0 2 forms of commercial speech that are not protected Ads for illegal products or services Falsemisleading ads Does the government have a substantial interest in regulating o Protecting the public morals health safety Does the regulation actualy advance the government interest asserted in part 2 o to a material degreequot Is the restriction on expression narrowy drawn 0 This was the deciding factor in reversing the Central Hudson decision Caveat emptor let the buyer bewarequot 0 The governments old attitude towards ad regulation The Federal Trade Commission FTC 1914 Congress created the PFC in 1914 Wilson presidency to prevent anticompetitive business practices and regulates ads Regulated deceptive ads because it was a form of unfair competition 0 Required that ads be truthful nondeceptive and fair and that businesses must have evidence to back their claims 1922 FTC challenged when it ordered an underwear company to stop putting natural woolquot on the label when it contained 10 wool Winstead Hosiery argued that the FTC lacked authority to regulate advertising that it was limited to policing unfair competition USSC ruled any ads that attempted to deceive consumers was a form of unfair competition WheelerLea Act 1938 under Roosevelt an amendment to the Federal Trade Act authorized the FTC to protect consumers O unfair or deceptive acts in commerce are hereby declared unlawfulquot 5 members appointed by president confirmed by senate O rotating 7 year terms no more then 1 commissioners term expires any given year No more then 3 members can come from one political party President appoints Commission Chair Daytoday work is performed by staff 900 in various divisions and bureaus Relies on complaints from consumers and businesses of possible legal infractions Bureau of Consumer Protection in charge of enforcing deceptive advertising rules At the mercy of Congress 0 Bound to enforce any amendments to the Act or legislation that requires FTC action Guides outlines of what is and isn t acceptable in advertisement within an industry not laws 0 O O O FTC will rescind guides when they become outdated Factual Advertising Claims claims stated as fact by advertiser must have a reasonable basis for making the statement Opinion Advertising Claims cases based on subjective opinion claims taste appearance smell are generally not actionable unless they are not honestly held Misrepresent the qualifications of the holder or basis of their opinion not a real doctor Recipient reasonably interprets them as implied statements of fact lTC Rules administrative laws advertisers not in compliance will be fined 1964 cigarette companies required to include health warnings on packs 2003 National Do Not Call Registry limiting telemarketers from calling households who chose to not receive them Quasijudicial enforces law and also has a branch for hearing legal challenges to its decisions 0 Initial cases heard by the Administrative Law Judge ALJ Can be reheard or appealed to the full 5 member commission A case before the FTC substitutes for a district court if appealed it will be heard by US Court of Appeals Deceptive Advertising According to Deceptive Statement Act an ad is deceptive if it contains a statement or omits information that is Likely to mislead consumers under the circumstances 0 Either by information that is included or excluded Technical information not in laymens terms Disclaimers in small print Dual meanings Bait and switch low price offer gt out of stock when consumer comes to store gt offer more expensive product Avoid by limited quantityquot disclaimer or rain check offers 0 material important to the decision to buy or use the product 0 Material deception causes injury 0 Not material if it has not effect on buying decision 0 by the reasonable consumer o more intended to protect peoplegroups who are the target of an ad how they see the entire message Children Terminally ill 0 Liability can be placed with the 0 Product or service 0 Company that creates the ad 0 Medium that carries the ad 0 Not a matter of truth or falsity 0 An ad can be true and deceptive or false and not deceptive Red bull no reasonable person will think drinking one will give you wings a Puffery an overinflated claim about a product or service that is not intended to be taken seriously OOOO FTC action 0 StaffAdvisory Letter informing an advertiser of their opinion of whether or not an ad is deceptive or not Does not have the force of law intended to avoid legal proceedings 0 Consent Agreement advertiser willingly agrees to a settlement Consent Decree FTC agrees not to prosecute the advertiser if they agree not to repeat the offense 90 of actions I Cannot be appealed unless it can be proven that it was based on fraud by one of the parties or a mutual mistake Cease and Desist Order part of consent agreement a Do not require agreement by advertiser o Corrective Advertising FTC requires advertiser to correct the misimpression 6 PR Core Values Advocacy serving the public interest to aid informed public debate 0 Free flow of information 0 Disclosure of information o Honesty high standards of accuracy and truth 0 Conflicts of interest 0 Expertise use of specialized knowledge and experience 0 Continued professional development research and education 0 Enhancing the profession 0 Independence objective council for those represented Loyalty faithful to those represented while honoring obligation to public interest 0 Safeguarding confidences Fairness deal fairly and respect the opinions of all and support the right of free expression 0 Competition Advertising Ethics Honesty and truth Transparency clear material information 0 Fair treatment of consumers Journalism Ethics 0 Seek truth and report it o Minimize harm Act independently Accountability Chapter 13 Media Business Law 4415 449 PM Laws regulating commerce are applicable to media business as well CONTRACTS Promissory Estoppel requires individuals to keep promises they have made if breaking the promise means harming the individual 0 Oral agreements do carry the force of law 0 3 Elements 0 Offer A specific promise conditional on acceptance that is communicated with the intent of forming the terms of a contract An individualcorporation of sound mind voluntarily agreeing to provide goods or services to a second party Mental capability and voluntary Counteroffer A conditional promise in response to an offer that changes the terms of the original offer which in turn requires acceptance essentially a new offer Revoke revocation of the offer by the offeree before acceptance Consideration each party must receive something of value for the mutual promises to be enforceable not always money Compensation of goods and services Breach of Contract A legal cause of action based on damages resulting from the failure of a party to a contract to perform according to the terms 0 Acceptance An offeree s consent to the terms of an offer by the means specified or expected by the offeror Express Evidence based signing a contract Implied Context based ill bring the money tomorrowquot Conditional acceptance based on a change in the terms of the contract it is a counter offer Release Forms contracts that either give consent for the use of personal information face name words in movies TV or release liability school field trip Implied Consent a form of consent that is not evident from a person s express statements but from circumstance 0 Example All licensed driver s in US have implied consent to field sobriety tests Labor Contract 0 No Compete Clause prevents a person often an employee who has learned trade secrets or skills or a company from competing after employment terminates 0 To prevent unfair competition Taking jobs with a competitor 0 Must be limited in scope geographical o Enforceabe beyond employment for a limited time o Morals Clause a provision in a contract that prohibits specific behavior in a private parties life 0 Hold individuals responsible for any behavior that may damage their reputation thus effecting the reputation of the media companyproduct with which they are associated Hold Harmless Clause liability waiver a provision where one party agrees not to hold the other party responsible for any damages 0 Getting hurt at a golf course golf course not held accountable Sherman Act 1890 Federal law prohibiting monopolistic behavior by businesses related Clayton Anti Trust Act of 1914 o Competitors are prohibited from plotting with each other because it is likely to result in less competition Labor Laws for most states 0 Minimum age 0 Minimum wage Workers compensation when hurt on the job Prevent employers from making employees work 7 days a week Equal Employment Opportunities prohibits businesses from making hiringfiring decisions based on race gender color creed or national orgin 0 Not a quota National Labor Relations Act 1935 0 Prohibits businesses from firingpunishing employees from engaging in union activity 0 4 Unions in Media 0 National Association of Broadcast Employees and Technicians NABET 0 American Federation of Television Radio Artists AFTRA 0 Screen Actors Guild SAG 0 International Alliance of Theatrical Stage Employees IATSE Investing in Media 0 Current Trend Stock trading of media companies mergers Insider Trading an illegal business where market participants base decisions on information that is known to be confidential and not generally available in the market
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