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comm 371

comm 371


● What has been the effect of the First Amendment?

● Why do we have a First Amendment?

what does that even mean?

JOUR371FINAL EXAM STUDY GUIDE Mitchell Chapter 1: CIVICS Government in the U.S. – ● Federalism​ – a concentric and overlapping (think of a vin diagram) system, where each layer of authority has some separate and some shared areas​ of lawmaking power (jurisdiction) ○ Layers of government – National, State, Local ● U.S. Constitution​ – the basic law of Don't forget about the age old question of Can anyone defend as just a system in which there are certain people who do no work or who work to create non­essentials that cater to vanities — he is referring to noblemen, bankers, and goldsmiths — should these people live in ease and luxury while th
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the land​ that acts as our government’s framework; each layer of government must act within this framework, but can also apply their own basic laws so long as they comply with the Constitution ○ Cities must act within the scope of their charters (i.e. The city of Denver couldn’t declare war on Aspen, because that doesn’t comply with the charters in local governments.) ○ States must act within the scope of their constitutions ○ All layers of government must act within the scope of the U.S. Constitutio​n (i.e. Congress can’t decide to deport citizens whose names start with ‘M’, because the U.S. Constitution requires an ‘equal protection of the laws’.) ● Laws – also known as statutes, ordinances, rules/regulations, executive orders ○ When national, state, or local governments implement a new law, not only must it comply with the U.S. Constitution, it also must be specific in meaning and purpose​. ■ Vague – lawmakers must avoid ambiguity​ (i.e. a law could never state something like, “everyone must behave”, because..what does that even mean? There is no clear, universal definition of ‘good behavior’.) ■ Overbroad – lawmakers shouldn’t include anything extra/unnecessary​ for achieving the purpose of the law (i.e. a law couldn’t state “it is unlawful to eat or sell and fruit within city limits” if someone eats a rotten apple and got sick, because it’s asking more than is necessary to resolve the issue.)● Legal Systems – ○ Federal Courts​ – have defined jurisdictions/are empowered to hear only certain cases ■ Federal jurisdiction includes issues with federal and constitutional law​ as well as when states have diversity conflicts with one another ○ State Courts​ – deal with conflicts within the state that do not extend to federal conflicts ○ Municipal Courts​ – deal with city ordinances, small state claims, and criminal misdemeanors ● The Judiciary System – ○ All federal judges are appointed by the president​, and confirmed by the Senate ■ Article III judges are appointed for life​, subject to removal only by impeachment ■ Others serve fixed terms. ○ All Mississippi judges, except municipal judges, are elected by district in nonpartisan balloting ■ Many start with interim appointments ■ Terms are 4 years for all except Appeals and Supreme Court, which are 8 years. ● Federal Courts: Role and Structure – (From TOP to BOTTOM) ○ Supreme Court​ – ■ Highest court in the U.S. created by Article III of the U.S. Constitution ■ Won’t hear a case unless 4 of the 9 justices agree to a review ○ Circuit Court of Appeals​ – ■ Made up of 13 courts (because of 13 regional districts of the U.S.) that sit below the Supreme Court ■ Their purpose is to determine whether or not the law was applied correctly​ in trial courts ■ Consists of 3 judges with no jury. ○ Specialty Courts​ – ■ Tasked to review issues dealing with bankruptcy, tax, and immigration ○ Trial/District Courts​ –■ Made up of 94 courts who resolve disputes by determining the facts and applying legal principles to decide who is right ■ Includes 1 judge and a jury ■ At least one district court resides in each state ● Mississippi Courts: Role and Structure – (From TOP to BOTTOM) ○ Mississippi Supreme Court​ – ■ Made up of 9 justices, who deal with cases such as capital punishment (death penalty), bond issues, judge/attorney disciplinary matters, utility rates,​ etc ○ Mississippi Court of Appeals​ – ■ Assists the MS Supreme Court with their caseload ■ Generally handle criminal and family law cases ■ Has 10 judges elected from 5 districts ■ Does NOT have the power to make new rules or modify existing laws ○ Trial Courts – ■ Circuit/county “law” Courts​ – ● Mississippi is divided into 22 Circuit court districts, with 53 Circuit Court judges who are selected in non-partisan elections to serve 4-year terms ● Deal with felony criminal prosecutions and civil lawsuits​ (i.e. worker’s comp, employment security, etc) ■ Chancery Courts​ – ● Have jurisdiction over disputes involving equity, property matters, adoptions, divorces, guardianship, wills​, etc. ● Can also hear juvenile cases like delinquency, abuse, and neglect ● 19 Chancery Court districts in MS with 49 Chancery Court judges (chancellors) ○ Justice/Municipal Courts​ – ■ Deal with small claims​ involving $3,500 or less, misdemeanor criminal cases and traffic offense cases ■ There are between 1 and 5 justice courts in each Mississippi county, depending on population ■ May hold arraignments, issue search warrants, set bonds, etc ■ Judges are typically non-attorneys○ NOTE: state systems (and state laws) vary​ in how they’re named/structured Chapter 2: THE MEANING OF FREEDOM ● Why do we have a First Amendment? ○ As a limitation on the power of government​ and a validation that the power to govern comes from the consent of the people​. ○ The five freedoms granted in the First Amendment, declared in 1791:: ■ Religion ■ Speech ■ Press ■ Assembly ■ Petition ● What has been the effect of the First Amendment? ○ The effect of the First Amendment has been to limit government interference with the expression/exchange of ideas​ in a societal context (women’s suffrage, civil rights, gay rights) as well as an entrepreneurial context. (Ideas have flowed from free expression and exchange and people have been able to monetize.) ○ It was concluded that while government was a necessity to bring order to a community of people​, the only legitimate basis for power to govern came from the “consent of the people to be governed.” ● If I were to say to you that a reason you are able to send a text stems from the First Amendment, what would I be talking about? ○ Your first response might have something to do with “free expression” related to the text itself, but think about the technology, too. Free expression is a major component of what has fueled innovation. America has been a fertile ground for inventive minds in arts, humanities, sciences. ■ American Exceptionalism​ - open exchanges facilitate creativity. This is much less prevalent in “top-down” governments and cultures where authority derives from intimidation and there is no encouragement of ideas. The significance of the First Amendment extends exponentially beyond the protections it provides to media enterprises. ● Development of free expression – Natural Law○ Cultural history is cyclical. ■ People strive for/gain personal freedoms. ● We have an inborn desire to set our own goals/destinies. ● But we need a social order to gain efficiencies. ● This is why law-making is difficult. ○ People like to control rather than be controlled​. People also like order and predictability​. The friction occurs at the intersection of these poles and drives the plot in the story of humanity ■ Over time, it becomes clear that absolute freedom yields chaos. So some freedoms are sacrificed to bring order. ● In the earliest civilizations, the strongest personality was the leader… ● Revolutions gave rise to “people power,” but even today we still look to government for protection and give up slices of freedom to receive it. ○ Early on, the threat that freedom of expression posed was dealt with through: ■ Laws against sedition (treason) for speaking or writing against the interests of the government. (“Free speech” was accepted if non-threatening.) ■ Licensing, which required printers to obtain prior government approval of printed material and post bonds that were forfeited if they displeased the powerful. ■ Prior Restraint ​- judicial suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful; in US law, the First Amendment severely limits the ability of the government to do this. ● It is one thing to be held accountable for what is published. It is another thing for government to prohibit expression on the belief it will be harmful. ● Media and others are not ​legally​ required to seek anyone’s permission before speaking/writing/posting. ■ Jury Nullification - ​when a jury chooses not to convict someone● Example: John Peter Zenger was a printer who was jailed for printing materials that were clearly seditious (against the views of lawful authority) under the existing British law. The jury chose not to convict Zenger of the crime because they found it wrong to punish a person for telling the truth. ■ Censorship - ​a prior restraint of delivery of all or part of a message; only censorship by government is prescribed by the First Amendment. ● Censorship in Social Media:​ There are examples of censorship in social media. It depends on who owns the platform. Facebook, for example, has rules about what can be posted. Some might call this censorship, but it’s not. By “joining” any site, “members” agree to abide by the site owner’s rules. ● Censorship in Business: ​Deciding what products to stock or sell has nothing to do with censorship, limiting free expression. We are free to say a president is doing a lousy job. That does not give us the right to appear on CNN and say our a president is doing a lousy job. Access to a forum for expression is not a First Amendment guarantee. ● Censorship in Society:​ If there are words people don’t want to read, hear or see, they are free to ignore and also free to try to block messages. ○ Almost every semester, a “street preacher” will appear in front of the Union, often calling students names. Equally often, there are students who say, “Why can’t this be stopped?” The street preachers are rude and abusive, and so the question is righteously asked, “Why do we allow this?” The uncomfortable answer is that we leave it up to people to decide whether to stop and listen or keep walking. Freedom of speech does not exist if defined or limited to “speech we enjoy or agree with.” It’s the standard in countries where speech is controlled to only allow “approved” or “acceptable” speech.● Self-censorship​ is also practiced and must be distinguished from external (government) forces. The text gives examples of violent movies not released in the immediate aftermath of the Sandy Hook school shootings. This was the distributor’s decision, not the government’s. ● How Freedom of Expression is Analyzed. ○ Absolutist​ — The First Amendment says “no law” meaning no infringement of any type on free expression can be tolerated. ○ Ad hoc balancing theory​ — It’s helpful to think of this one as a teeter-totter or a seesaw. Put the competing arguments on either side and see which one has more weight. It’s problematic because it lacks predictability and we like for the law to be predictable. ○ Preferred position balancing theory​ — It’s helpful to think of this one as a teeter-totter, too. But the interest in free expression has one side held down and there is a presumption it will outweigh anything that comes along. In law, presumptions are strong things. The burden of proof is a strong thing, and in the preferred position balancing theory, the burden of proof is on the claimant to show free expression will create a lasting or significant harm. ○ Alexander Meiklejohnian theory​ — This approach strays from the notion of balancing interests into a philosophical approach. It’s tenet (or basis) is that successful self-government is the end and freedom of expression is the means. The hierarchal approach is that if expression that relates to self-governance (political speech) must be protected absolutely, while other speech can be balanced against other interests. So a blog post criticizing Congress could make any claim, but the same protection to a blogger writing about his experience with a new Ford car wouldn’t have the same level of freedom. ○ Marketplace of ideas theory​ — Holds to the maxim, “Truth will out.” The more that is said, the closer you get to the essence. The thinking is that all discussion is good because it keeps testing assumptions, keeps narrowing, keeps focusing. Its basis is that the only reason to protect expression is to find truth. Although the Supreme Court, which tells us what free expression means, likes the marketplace approach (Virginia v. Hicks), it presumes a one-directional advance in the marketplace. Anyone who has ever read comments to a news story or some otherpost knows that rational discourse rarely lasts more than one of two comments before people start calling each other names, start questioning motives. … and worse. ○ Access theory​ — Not really important since 1974, Miami Herald v. Tornillo. This is not really a theory of free expression analysis, but your text authors put it here. The premise was that everyone should have media, print and broadcast, access for free expression to be meaningful. The court rejected that and technology has made it a moot point. Where there was a time when owning a press was essential to freedom of the press, but YouTube and myriad other developments have changed all that. Anyone of you can have a revolutionary idea and, if it resonates, it will go viral before we meet again. ○ Self-realization, self-fulfillment theory ​— Also more of a consideration than a theory. It concedes there is value in getting it off one’s chest. This is a valid approach given the thinking that expression, as in art, is personal. Chapter 3: THE FIRST AMENDMENT ● The First Amendment to the U.S. Constitution - ○ As journalists, we have to follow certain communication laws. ○ Freedom of Expression​ – stops the government from making any laws that may stop us from saying what we feel or think. The American people have the right to share their opinions with other people or criticize the government. ■ Reflected by classical civilization around the time of the invention of the printing press ■ There are exceptions to this, however. ● To keep “order” in society, there are occasional “content-neutral” limitations on the time, place, and manner of expression; these are not bans and are usually legal under the constitution ● Qualifications of legal speech: ○ Must not incite violence or rioting ○ Must not be obscene ○ Must not solicit criminal communication​ (prostitution, etc)○ Must not “cry wolf”; if one were to announce something that could incite chaos, there must be a clear & present danger ■ Can words be crimes? – Yes! If they break any of the previous rules, simply speaking certain words can constitute as a criminal act. ■ What about kids? Do they have 1st Amendment rights? YES! ● Tinker & Barber case: students have the right to engage in symbolic speech that is not unduly disruptive ● Bethel & Morse case: schools may restrict speech that is overly lewd, vulgar, indecent, or pertain to illegal drugs. ● An example of “content-neutral” ideals in schools – school boards requiring all students to wear uniforms, to avoid issues with lewd designs on apparel ○ Freedom of the Press​ – means we have the right to get information from many different sources. The government does not have the power to control what is broadcasted on radio or TV, what is printed in books or newspapers, or what is offered online. American citizens can request time on TV to respond to any views that they disagree with. They can also write letters to newspapers, which might be printed for others readers to see. Americans can also pass out leaflets that state their opinions. They may also their own online web pages that have their opinions. Chapters 4 & 5: LIBEL AND DEFAMATION ● Plaintiff​ – complainant; term used to describe a party who initiates a court action in order to seek a legal remedy; opposite of a defendant ● Tort​ – Greek word for “wrong”; a civil wrong or wrongful act​, whether intentional or accidental, from which damage occurs​ to another ○ In some jurisdictions, like California for example, even verbally threatening to sue/intimidate someone else’s freedom of expression is considered a tort ○ In Mississippi, the malicious use of civil prosecution​ says that – if someone tries to sue you in court, but their case is not backed withevidence of your wrongdoing, then you can turn around and sue them for intimidating your freedom of expression ● Libel​ – the written or broadcast form of defamation; a tort making a person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie; falls under common law​ (but has variations between states) ○ Slander​ – the oral form of a libel ○ Civil libel​ – when the injured party is seeking money to compensate for the damages of another (this is the type of libel we’ll focus on) ■ Types of Civil Libels – ● Libel Per Se​ – means “by itself” or “on the face of it”; type of libel that is obviously damaging to a person/entity’s reputation​; the entity libeled in this manner does not have to prove that they suffered damage to their reputations, monetary loss or other injuries​; this type of libel requires no witnesses in court​; for example, if you say, “Attorney Peter has no license to practice law”, the attorney could easily prove this to be a false statement and can therefore press charges against the speaker ● Libel Per Quod​ – means “hidden”; the false statement is not inherently defamatory and has to be evaluated in the context of additional facts​; damage must be proven; this type of libel requires a witness to testify and say that the statement was understood and the reputation of the plaintiff was damaged​; for example, if someone says “that NASCAR driver put nitrogen in his tires” and the listener doesn’t know whether or not that is against the rules, this is libel per quod against the speaker ■ Social media created a world where libel (falsity) is faster, easier and often anonymous; pre-internet rules still apply (for the most part), but it is certainly more challenging to establish ● The Communications Decency Act of 1996 (CDA)​ – states that a provider of an interactive computer service (like social media platforms) shall NOT be treated as the publisher or speaker of any information provided by another informationcontent provider; only the individuals posting within the platforms can be accused of libel ● In other words, you create, you own. ○ Elements of a libel: ■ Published​ – spoken, written, or placed where others may see or hear; communicated; there is no specific number of people who must see or hear it, but it must be more than just the plaintiff ● If you text someone and call them a liar, it’s not a libel, because it was not published; if you posted something like that on Facebook, it IS a libel because it has been published. ● Republishers​ – when someone reiterates false information; anyone who had a choice or control over whether to repeat the content/message; this is also considered a libel ○ Republishers vs. Vendors – Vendors are those who merely distribute​ (like the Postal Service, or a bookstore); they are not responsible for and have no authority over the contents that are passed along and therefore are not liable for a libel. ■ False statement of fact – ● Fact​ – an objectively provable​ event or occurrence; if it can’t be proven, it isn’t a fact ● Different from expressing an opinion; if you say “I think Trump is a lousy president” this is pure opinion (“value judgment”) and is therefore protected by the First Amendment ○ “Trump stole from the charity fund” is a statement of fact, and if it is untrue, then it is considered defamatory and punishable ○ “I think Trump is a lousy president because he stole from the charity fund” is a mixture of opinion and fact and IS still defamatory and punishable ○ Who proves the facts? – If a plaintiff sues and says, “that’s not true” then it is the burden of the defendant to prove the truth. ■ Defamatory​ – a defamatory statement with the nature of lowering the esteem of a person or entity,​ in other words,making people think less of a person or entity;​ in terms of journalism, the omission of critical information that a person stated that alters how people perceive the speaker is considered defamation ● Example: NY Times vs. Sullivan​ – L.B. Sullivan (plaintiff) was the police commissioner of Montgomery, AL and the NY Times (defendant) was paid to print an ad accusing Alabama officials of being unjust; as a result, the plaintiff had to prove that the statement resulted in actual malice, meaning that the publisher knew the statement was false or acted with reckless disregard to the truth or falsity. This case made it difficult for public officials (people who, either by choice or circumstance, find themselves to be at the center of a matter of public concern) to sue for libel​. ○ But how do you differentiate between a public official or a private individual? Ask yourself: ■ Did the controversy exist before the allegedly libelous publication? ■ Did the plaintiff voluntarily join the discussion? To what extent did the plaintiff jump into the matter? ■ And, in joining, did the plaintiff try to influence the public? ■ Also, was mass media used? ■ Was the matter current? ■ Against an identifiable person or entity ■ Believable ■ Results in damage to reputation ● Reputation is a commodity​; individuals, companies, brands…they work for their perceived reputation to be positive; whens someone falsely accuses them of something, it can often be significantly damaging to their reputation ● Some people, however, are actually considered to be ‘libel proof’​ if they had no good reputation to begin with; for example, if someone is in prison for murder and someone publishes a false statement saying that this convict beat hisdog, the convict cannot sue because he did not have a reputation to damage Chapter 6: THE DEFENCES OF LIBEL ● Occasionally, someone will take someone to court over something he/she simply got angry about. In this case, where the defendant can show that there is no basis for the suit​ as a matter of law, a summary judgment ​can result, ending in a savings of time, money, and effort. ○ Remember, there’s a difference between something being “true” and something being “provably true”. ● Is there a time limit to file a lawsuit over something? ○ Yes, if a certain amount of time passes (different from state to state), the lawsuit will expire and the plaintiff will lose the opportunity to file the lawsuit. ■ Mississippi circuit courts have a 1-year statute of limitations, which starts when the content was published, printed, or posted​. ● Social media in this Internet Age creates complications about which court has jurisdiction over a specific online-based libel cases. ● In addition, lawsuits cannot be intermingled in international affair. For example, if someone in Japan publishes a defamatory statement about an American product, the American plaintiff cannot conduct a lawsuit. ■ Say, a plaintiff didn’t see the content at the time it was published. ‘Reruns’/’Retweets’ don’t restart this statue of limitations​. ■ It can become complicated if there’s a new publication based on old, libelous information, however. ● Privilege​ – concept in law where someone has some advantage/honor; in legal terms, ‘privilege’ means protected due to the context or circumstances​; a published, false statement of fact is not blameworthy due to the source or context​ and was not intentionally inciting actual malice (lawyer-client privilege, doctor-patient privilege, etc.) ○ Types of privilege: ■ Full privilege​ – based on official and private contexts● For example, elected officials, speakers, and witnesses are protected from libel during government hearings. Also, an official published press release or press conferences, as well as court testimonies, documents, and records in a lawsuit docket are also protected from libel ■ Qualified privilege​ – is derivative; based on reliance; a false statement of fact will NOT be actionable if the source is a privileges document or proceeding AND the report itself is a fair and accurate summary of the privileged document proceeding ● Identity​ – ○ The use of a plaintiff’s name is not required for it to be considered a libel ■ Whether or not an identity is clearly implied – can be established by the context. ● Believability​ – ○ Overstatements can be thought of as opinion (not believable), or not believable (not to be taken seriously); if no one believes a statement, reputation is not damaged, and it is not a civil libel. ● Damages​ – ○ Injury to reputation, standing in the community, personal humiliation, mental suffering and anguish cannot be calculated in a single, definitive objective method ■ Damages are scalable due to the severity of the injury to reputation. ○ Punitive damages​ – plaintiffs may ask a jury to impose damages in addition to actual or special damages to punishing a defendant; more like a fine than a compensation ■ Mississippi and many other states have retraction statutes that, when properly followed, cancel the risk of punitive damages being given at trial. (MS Code 95-1-5 in 2013) ○ How to determine whether or not a damage is worthy of a lawsuit: ■ Was there a publication to at least one other person? Or was there a republication by choice? ■ Was there a statement of fact about an identifiable person? Was it false/defamatory? ■ Was the statement of fact about a business, product, or public figure?■ Is the speaker to blame for the false statement of fact or is it an accurate report from a privileges source? ■ Was the statement believable? ■ Was reputation, in fact, damaged? (Per se, or as a loss of sales) Was it bad enough to warrant punishment? (Was there a retraction?) ● Most cases of libel in communications arise from sloppiness, inattention, or a rush to judgment. ○ There are some escape clauses for media practitioners, but the best practice is just to be careful in what you publish​. Chapter 7: INVASION OF PRIVACY - APPROPRIATION AND INTRUSION ● 3 basic concepts of American privacy​ based on the notion of control​: ■ Autonomy​ - private and personal decision making​ by an autonomous individual, free from government interference and intrusion​; usually in the context of profession, procreation, health, personal relationships, etc; self-determination​ (ex: Roe v. Wade) ■ Space​ - a physical zone of privacy​ into which others may not intrude or trespass; a private (not public) location from which the legal standard “reasonable expectation of privacy” may be rooted; the right to seclusion​ (ex: individual's territorial solitude) ■ Information​ - some facts and data about oneself that should not be revealed​ either to or by others (ex: medical records) ○ The right to privacy is a personal right, available only to humans​. Organizations​ – businesses, universities, nonprofits – have information that can be shielded​ from the public, but not as a “right to privacy” matter. It is important to differentiate between whether the invasion of privacy is by the government or by a private entity. Usually, people are more concerned when the government is “snooping”​ and are much less concerned about private information gathering​. Why? Sometimes we benefit from private information​ gathering (Kroger Cards, for example, keep track of what you buy and eat so long as they disclose how the information is being used, but you also get discounts as a result!)○ General rules for the government to follow: ■ When the government is collecting information on individuals, it must be justified​. ■ The interest of society​ must override the interest of the individual. ■ Balancing tests​ may ensue to assure the government is not taking advantage of its powers to intrude on people’s privacy. ○ NOTE: The right to privacy is an ever-evolving concept in American society. It has developed into the backbone of marketing: ■ 60 years ago hospitals routinely published lists of who was in the hospital and why. Today, medical information is highly personal and is confidential by statute. ■ Google has access to who you email and who emails you through Gmail. Amazon knows what you like to buy and when you prefer to buy it. Kroger knows what food you eat and how often you eat it. AT&T knows who you call and text, and who calls/texts you. Marketers use this personal information of yours to target you with advertisements and to perform marketing research. Most people don’t mind about this intrusion on our privacy, because we’re often rewarded with discounts, promotions, etc as a result. ● Primary Sources of Privacy Rights in America: ■ Constitutional law​ - there is no specific mention of a “right to privacy”​ in the Constitution or Bill of Rights, but it can be accredited to judicial activism​ or the aggregation of a variety of rights​ with the general implication​ of “being left alone” by the government ​in the Bill of Rights ● State governments began to make laws over matters that some people deemed too personal for government interference, so people took it to court, resulting in the privacy policies we have today. ○ Griswold v. Connecticut (1965) Contraception was illegal in Connecticut. ○ Roe v. Wade (1973) Obtaining an abortion was illegal in Texas. ○ Bowers v. Hardwick (1985) Homosexual acts were illegal in Georgia (upheld)○ Lawrence v. Texas (2003) Homosexual acts were illegal in Texas. ○ Obergefell v. Hodges (2015) Ohio did not sell marriage licenses to same-sex couples. (equal protection) ● 4th Amendment​: protects privacy from unreasonable searches and seizures in homes ■ Statutory law​ - provides protection from privacy violations​ by both government and private entities. ● Family Educational Rights and Privacy Act (FERPA​) - relatively new law that treats the privacy of academic records​ like that of medical records ○ Does not create a private cause of action​. ■ Ex: If someone’s academic information is released by a university, the victim whose information was released cannot sue for personal damage. Instead, the institution/university would end up losing federal funding. ○ Only allows the release of “directory” information like awards received and honor roll titles, etc. ■ However, FERPA even supplies the opportunity for people to block even this directory information from being shared with the public ● Health Insurance Portability and Accountability Act (HIPAA​) - the doctor-patient confidentiality law; applies only to healthcare providers ○ Only allows the release of “directory” information like whether the patient is in stable/critical condition, etc. ■ However, HIPAA even supplies the opportunity for people to block this directory information from being shared with the public ● Children’s Online Privacy Protection Act (COPPA​) - makes it illegal to direct market to or harvest marketing information from people under the age of 13 ■ Common law​ - protects Americans from… ● The intrusion upon the plaintiff’s physical solitude​ or seclusion● Publicity which violates the ordinary decencies ● Putting the plaintiff in a false, but not necessarily defamatory position in the public eye (false light) ● The appropriation​ of some element of the plaintiff’s personality for a commercial use. ■ Administrative law​ - usually come as a result of consumer complaints; if people think their information is being gathered and used too aggressively, they ask elected representatives to protect them ● Federal Trade Commission​ (FTC​) - uses law enforcement, policy initiatives, and consumer and business education to protect consumers’ personal information​ and ensure that they have the confidence to take advantage of the many benefits of the ever-changing marketplace ● Consent - ​the major defense to an intrusion of privacy claim; can be expressed​ by a signature on a consent form or can be implied​ by showing that the plaintiff knew the purpose and did not object; those who voluntarily place information before the public do NOT have a basis for filing a violation of privacy case ○ Some people don’t have the legal capacity to give consent​: ■ Minors (under 18) ■ Mentally ill ■ Incarcerated people ○ Adequacy of Consent/Informed Consent​ - describes the request of an individual for someone else’s consent, and to what degree the action was explained​ before consent was given; a judge has the burden of determining whether consent was informed or not adequately informed; plays a big role in the medical field where patients must understand the risks and benefits of treatment; when downloading an app, do you typically read every word of the consent page? Does anyone? ○ If an image is substantially altered​, for example, if you consent to having your picture taken but the publisher photoshops you to look like a witch, then the consent can be voided​ and you can file a lawsuit. ○ Usually these cases arise when a person does not know that they’ve given consent​ or when they discover that “private” information about them was actually public information.■ Example: Suppose Bob has skin disease, a severe case — and frequently Googles “psoriasis relief” and other, similar terms. Bob may be surprised when he gets an email with a coupon for a medicine for psoriasis. He might be aghast to discover that he has actually put online what he considered to be personal, medical information for ad companies to harvest. And it could go on from there. Suppose Bob applies for a job as an airline pilot and a background check reveals he is a member of a Psoriasis Sufferers Group Page. Psoriasis is not debilitating, but another applicant who doesn’t have psoriasis may get the job. Bob would never know he was discriminated against (perhaps illegally under the Americans with Disabilities Act) based on Google searches he had initiated. However, since he didn’t know his search terms were telling anyone about his medical condition, a judge might consider his case to have a reasonable expectation of privacy​. ● The 4 Torts of Privacy Law​: Appropriation, Intrusion, Public Disclosure of Private Facts, and False Light; if every element of a tort is not represented in a case, there is no tort to file a lawsuit on​. ○ Appropriation​ of​ someone’s name or likeness​ for commercial use - ■ The three elements of this tort are: ● (1)Appropriation ​- to take something without permission ● (2)Name or Likeness​ - a defining characteristic of an individual such as their face, name, voice, etc ● (3)For commercial use​ - in order to make money off of it ■ There are two classes of people (famous/nonfamous) that this privacy tort can apply to, and each are treated very differently ● Famous people​ - their names/voices/faces hold a monetary value​ and thus have a property interest called Right of Publicity​; when this is infringed upon, celebrities consider this to be theft​; Right of Publicity is upheld even after the individual dies ○ Right of Publicity​ - the right to control the commercial exploitation of a person's name, image or persona. ■ If someone pays Kim Kardashian to have her picture on the side of a bus and she agrees to it,the bus company/advertiser has a right of publicity to use it. ■ Because a right of publicity is “property” it can be sold or inherited just like a ring or a car. This is why Elvis and Michael Jackson have made millions more annually since they died than when alive. ○ If a celebrity’s image or likeness is used without permission​ or payment, this is against the law​. ■ Say you live in Taylor, Mississippi and sell fast-food burgers. Even though you have an abstract reason for calling your restaurant Taylor Swiftburgers, it would be hard to argue that the relative value of Taylor Swift’s name didn’t benefit your business. ■ Example: When a grocery store published a congratulatory note to Michael Jordan’s success in 2009 in Sports Illustrated, they included a coupon for steak. Since they used his image to promote sales without his permission, they were sued for $8.9 million. ● Nonfamous people​ - have a right to not be exploited​; must have been embarrassed or hurt emotionally​; no damages can be upheld after the person dies​ because they cannot still be affected emotionally and their name does not hold any commercial value ○ Say a picture of your non-celebrity deceased mother somehow shows up on the back of a bag of flour. Since emotion isn’t inheritable (in terms of law), there is no basis to file a lawsuit. ○ If someone took a picture of your face, enlarged it, and put it on the side of a bus without your consent, resulting in the whole town calling you “bus girl”, you’d have a case based on stress/embarrassment. If you were unrecognizable in the photo, you would have no basis for taking action.○ Ex. In Mississippi a few years ago, Abileen (a character in the movie “The Help”, and also a real person) sued someone over the appropriation of her name/likeness in the popular film. ■ Exceptions for the media: ● News exception/exemption​ - when someone’s name/face/voice is being used for the purpose of public information and spreading news, consent is not entirely necessary ● Incidental Use​ - Say you attend a concert and the band takes a photo of the crowd to publish on a poster for their upcoming tour. You were wearing your very noticeable sparkly shirt, but your buddy’s arm is covering up the upper half of your face. You may be embarrassed that you’re on all the posters, but since you’re not identifiable, you cannot file a case. ● The Booth Rule ​- provides fairly broad protection to the news media by allowing celebrity stories and images to be published as news without consent; an aspect of the news exemption and incidental use; states that the media can publish a newsworthy photo/quote/etc of a celebrity, and then republish it later for promotional/commercial use ○ Ex: Mick Jagger’s cover of Rolling Stones was very popular when it was published. Under the Booth Rule, Rolling Stones is able to republish Mick Jagger’s cover to promote their magazine subscriptions. ○ Intrusion upon an individual’s solitude(seclusion) - ■ How the information was obtained matters more​ than if the information was published ■ If someone infringes upon a reasonable expectation of privacy​, there is an intrusion offense - no matter if the information was published or not​. ● Wiretapping cell-phone calls - Cell phone calls come with an expectation of privacy, so if an individual has the technology necessary to illegally tap into someone else’s phone, the Electronic Communications Privacy Act (ECPA​) says that thisis an intrusion of seclusion, and is therefore actionable by a plaintiff ■ How do we know if a reasonable expectation of privacy exists? ● “Newsworthy” for the media does NOT apply in intrusion cases, because it does not have to do with publication, only the actual collection of information ■ Things that anyone can see or hear​ are NOT considered to fall under a reasonable expectation of privacy ● Citizen Journalism​ - since nearly everyone owns a smartphone nowadays, citizen journalism is becoming very popular. People can film, report, and publish events within seconds of their occurrence; biggest controversy in citizen journalism: people recording the actions of police officers when they’re doing their jobs (this is a protected right of the individual, as long as it’s recorded in a public space, but officers complain that these bystanders can be detrimental to their work) ● Stealth Journalism​ - refers to the use of hidden cameras and recorders in order to obtain information; legal to use​ in media work, but is frowned upon​ and has a set of rules to keep things ethical: ○ Rules of Stealth Journalism from the Poynter Institute: ■ Used only when sought-after information is profoundly important. ■ Used only when all other alternatives have been exhausted. ■ Used only when the benefit to society outweighs the harm to the individual being recorded. ■ Used only when all hands are clean (no malicious activity is taking place on the recorder’s part) ■ Used only after discussion with other media practitioners results in a confirmation of appropriateness ○ Example: A woman got into a car wreck and someone filmed the scene while she was being put into an ambulance. The video was published on the news, andwas therefore not an intrusion upon her privacy because she was out in public. However, when she was in the ambulance, her conversation with the nurse was recorded and later published as news. Since this was not within a reasonable expectation of privacy, the woman would be able to file a lawsuit on invasion of privacy. Chapter 8: PUBLICITY OF PRIVATE FACTS & FALSE LIGHT ● The 4 Torts of Privacy Law (Cont’d)​: Appropriation, Intrusion, Public Disclosure of False Facts, and False Light; if every element of a tort is not represented in a case, there is no tort to file a lawsuit on​. ○ Public Disclosure of Private Facts (Keyhole Journalism)​ - the publication of private information that would be highly offensive to a reasonable person but has NO legitimate public interest; ​damage is not measured by an injury to reputation (like with a libel), but instead damage is measured by the disclosure of privacy ■ Elements of the tort “Public Disclosure of Private Facts”: ● (1)Public Disclosure​ - presented to a mass audience ● (2)Private Facts​ - information that is NOT held in public records or databases ○ A fact isn’t private if it has ever been public; time is irrelevant ■ Ex. You can’t consider something you said 40 years ago in your testimony on trial to be private information. ○ Information that is in public records can never be considered private information - even if the plaintiff doesn’t realize​ what facts are on public record ■ One case that has generally been an exception to this element (therefore making it unconstitutional) is in the case of protecting the identities of rape/sexual-assault victims ● Is being a victim of a sex-related crime a public fact? Historically, people havethought rape victims were “damaged goods” and that they “asked for it”, so shield laws protected their identities as private information​, and media practitioners had to comply. ● Some shield laws state that the government (police or otherwise) can not disclose the names of the victims; other shield laws prohibit the publication of the victims’ names; Mississippi still has a so-called rape shield law that keeps the victims’ identities protected from the public; all of this is most likely unconstitutional​. ● Today, media practitioners generally follow the rule to “only record/publish the victim’s identity if the victim chooses to do so”, ​which still conforms to the shield law school-of-thought, although rape is a crime and it has nothing to do with passion/romance and “deserving it”; it is a crime of the same caliber as manslaughter and murder ● (3)Highly Offensive to a Reasonable Person​ - since whether something is “offensive” is subjective, a judge must determine whether the disclosure of information would be offensive to a “normal” person; it doesn’t matter what the plaintiff is sensitive to or what they would prefer to keep private ○ This means that someone can go to court with the publisher of legally obtained, truthful information, as long as “normal” people agree that this information was generally considered to be private ○ Difficulties: judge/jury has to decide whether the individual is “reasonable” ■ Ex: One celebrity enrolls her child in a school known to serve students with learning disabilities, but considers her child’s educational/medicalcondition to be very private. Another celebrity enrolls his child in the same school and is a big advocate for education for students with learning disabilities. Someone in the media finds out and publishes a story about both children. One celebrity might not care, and the other cares a lot. Which parent is reasonable? ● (4)Legitimate Public Interest​ - society’s need/desire to obtain certain information; can also be subjective, so it’s left up to the judge to decide ○ Difficulties: judge/jury has to decide whether the public has a need/desire to know the information ○ This is what makes this tort so rare; courts don’t like determining what is important for the public to know​. ■ Ex: (Above) Is there a “legitimate public interest” in whether or not the public should know about the celebrities’ children enrolling in a school for kids with learning disabilities? ○ However, if certain information is avoidably included​ in a publication just for the sake of “spicing up” a story​, this would definitely NOT be of legitimate public interest and the tort would be upheld ■ Sometimes people’s exposure in the media is purely incidental​ - they can lose their privacy whether they want to or not; in some cases, this invasion of privacy is not actionable ● Ex: Someone has an affair while their spouse is out of town. The candles around the hot tub catch the house on fire, and the people’s names and identities, as well as the house address, were reported on the news. The privacy of the spouse that is out of town is incidentally exposed by the nature of the situation, and a public disclosure of private facts lawsuit would probably NOT win in court. ○ False Light Invasion of Privacy (libel-lite) - ​very similar to a libel case, except it doesn’t have to cause injury to reputation​...it only has to embarrass​ someone; a plaintiff has been put in the public’s eye in afalse light​ that would be offensive to a reasonable person​ and the publisher was at fault ■ Difficulties: deals with publishing legal and truthful information, and can be subjective ● Ex: Bob was arrested in 1999 for robbery and is found innocent. In 2007, Bob was arrested again and his report mentioned his prior arrest but did not include the fact that he was found innocent. All information published was true, but it left Bob in a “false light” in the public’s eye. ■ Usually arises from a complaint about a publisher overreaching for interesting story elements ● Ex: A photographer takes a picture of a brother and sister sitting together in the Grove and later publishes the photo with the caption “Spring is the time for romance”. There is no false statement of fact, but this would be pretty embarrassing to the siblings. This is a result of sloppy journalism. ● Questions to ask yourself when analyzing a scenario: ○ Appropriation: ■ Was something used without permission? ■ Was it based on an individual, whether famous or not? ■ Was the individual recognizable (whether in a photo, or a voice recording, or as a cartoon, etc)? ■ Did the publisher receive (or intend to receive) commercial benefit? ○ Intrusion: ■ How was the information obtained? Did it infringe upon a reasonable expectation of privacy? ○ Publicity of Private Facts: ■ Was the information private? ■ Was it presented to a mass audience? ■ Would a reasonable person find it highly offensive for their information of this nature to be published? ■ Is there reason to think there is a legitimate public need to be presented with this information? ■ Was the publisher at fault?○ False Light: ■ Was the information published? ■ Was the information necessary to the article published? ■ Was the individual left in a false light? ■ Would a reasonable person find the publication of their information of this nature to be highly offensive? Chapter 9: GATHERING INFORMATION ● Media Practitioners in America: ○ Why do journalists and the media exist? ■ Politicians​ use the media to advance their agenda ■ Marketing specialists​ benefit greatly from “free media” ■ The government​ uses the media to inform the public on many issues ■ Sports/entertainment enterprises​ thrive on media coverage ■ Individuals and societies have always and will always need information (weather, dangers, trends, etc) to bring order​ into their lives ■ They make money​! The more trustworthy content they provide to society, the more customers they obtain. ○ Who/what is a journalist? ■ In legal terms, journalists are just regular citizens​ of our country. ● There is no constitutional right of access​ that the media has that other citizens do not ○ For example, if a journalist asks you for information, you do not HAVE to give it to them. ● However, the media does have a special place in society - there’s a press room at the White House, press boxes at sporting events, etc. This special access is NOT governed by any operation of law​. ○ The First Amendment “Freedom of the Press” basically states ‘publish what you want; we have no obligation to help the media more than anyone else​.’ ● On the flip side, media organizations can NOT be singled-out and excluded​.○ A journalist has the same legal right as anyone else to be in a public place. There is no legal basis for declaring a “media free zone” in any public venue​. ■ For example, the mayor of Oxford cannot prohibit a journalist’s access to an open city council meeting, just because the mayor doesn’t like the media organization. A First Amendment argument could be made in this case, on behalf of the journalist. ■ Shield Laws​, however, (exist only in some states) give journalists advantages over regular citizens​, such as expediting journalists’ requests for information ○ What can and can’t journalists do? ■ Since media practitioners are just citizens, they’re as answerable to criminal and civil laws as anyone else​. ● Trespassing​ - the intentional, unauthorized entry onto a premises that is lawfully occupied/owned by another individual; includes indoor and outdoor areas ○ Technically, an individual is not trespassing until the owner asks him/her to leave ○ Ex. If the mayor of Oxford rents out a conference room at the Holiday Inn for a big private event, he “owns” the room and is able to include/exclude any individual he wants to. If he tells someone to leave - and they don’t - then that person is trespassing. ○ Ex. The mayor holds a permit to host an outdoor event in a public park and requires attendees to purchase a ticket to enter the area. Even though it’s outdoors, the mayor can exclude the media from the area since he “owns/is renting” it. However, anything that can be seen or heard from off the premises is considered to be “in public” for which the mayor could NOT take action. ● Harassment​ (Stalking)​ - the use of aggressive pressure or intimidation to influence an individual; also, the hounding/stalking of an individual that does not wish to be contacted● Fraud (deception)​ - knowingly making a false statement to a person with the intention of having that person rely on the statement to his/her detriment ● Failure to obey lawful orders​ - media practitioners must comply to all the laws that a regular citizen must comply to ○ Ex. Police officers at a crime scene may make an order for bystanders (including the media) to “move back” in order to preserve evidence and protect public safety. Media Practitioners have no supremacy over the police or other bystanders and would have to follow the police’s orders. ○ NOTE: authorities will often assist the media (in terms of providing credible sources of information) if they’re asked nicely. ○ The Musumeci Case​ - After 9/11, a law was enforced that prohibited photography of federal building entrances, in order to guard against terrorists planning attacks​. This law, however, was an unconstitutional overreaction. ● Use of audio recording devices​ - ○ Most states (including Mississippi) are known as “one-party states”​, meaning that as long as one person in a conversation knows it is being recorded​, then the recording is lawful. ○ “Two-party states”​ require that everyone being recorded knows that the conversation is being recorded​; usually a notice will be posted stating that audio recording is in process. ○ It is NEVER lawful to record a conversation between 2 or more people that do not know they’re being recorded​. This is called wiretapping, ​which does not involve privacy tort issues like seclusion or the disclosure of private facts. ■ Ex. There is a closed-session meeting at the town hall, where the media is not authorized to attend. By leaving your purse in the room with yourphone “record” function enabled, this is unlawful and is considered to be wiretapping because no one in the conversation knew it was being recorded. ● How private is government information? ○ Federal Freedom of Information Act (FOIA)​ - a law that gives you the right to access information from the federal government​; often described as the law that keeps citizens in the know about their government​. ● FOIA does NOT apply to Congress or Federal Courts ○ Congress makes its own rules, but, generally speaking, sessions are very public. ○ Courts​ also make their own rules, but are constitutionally required to operate in the public​. Courts speak through written orders that are public records. ● It’s based on the democratic principle that an informed public is essential and citizens have a limited right to know how public funds are being spent​ and how federal policies have been developed​. ● FOIA keeps a public-access record of this government information. ○ How much information is available to us and why would a citizen be denied access to certain information? ■ An essential test for measuring whether a denial of access is valid​ is to ask whose interest is served by non-disclosure​. ■ Protecting the government (or a government official) from embarrassment is NEVER a justification​ for keeping information confidential. Although that’s the reason for most access denials, it can not be the legal basis of access denial. ■ Denial of access to certain records must be in the public’s interest​ (such as the blueprints for a hydrogen bomb).■ Who/what is exempt to providing information to FOIA? ● Personal and trade information (trade secrets) ● Military operations and national security information ● FERPA​ (Family Educational Rights and Privacy Act of 1974, AKA the Buckley Amendment​) - keeps academic performance information private​ with the exception of certain directory information (Honor Rolls, Dean’s Lists, etc.) ○ FERPA’s exclusion in FOIA does NOT apply to law enforcement records​; if a student is charged with a crime, that information is on public record. ○ If an individual’s academic performance information is wrongfully disclosed to the public, the individual still does not have a basis for lawsuit​. The government would instead punish the institution/university with a loss of government funding​. ● HIPAA ​(Health Insurance Portability and Accountability Act of 1996) - applies rules of confidentiality to individuals’ medical records ○ Formalizes/officiates Common Law’s doctor-patient privilege and extends it to all health care providers and other 3rd party individuals​ who may need access to the information (like insurance companies) ○ Creates a system of severe monetary fines​ to those who violate HIPAA. ○ Individuals who receive medical treatment must fill out a HIPAA form, in which they can opt-out of even the disclosure of directory information ■ Ex. If Tiger Woods is seen being rolled into the emergency room, and he opts-out of the disclosure of directory information, then if the media asks a nurse about Woods’ condition, and she states that he was in critical condition, Woods would have legal basis for filing a lawsuit against HIPAA violation. She SHOULD have stated, “We have no record of a patient by that name.”● What statutes are in place for protecting/disclosing state governmental information in Mississippi? ○ Mississippi’s Open Records Act​ - ensures public access to public records in the possession of governmental entities in Mississippi; states that providing access to public records is a duty of each public body ■ Definitions: ● “Public bodies” - organizations whose work is part of the process of government​, but is not a government department; any department, bureau, division or agency of the state or a political subdivision thereof, and any municipal corporation and any other entity created by the Constitution or by law, executive order, ordinance or resolution ● “Records”​ - any documentary materials,​ regardless of form or characteristics, used in conducting public business; includes e-mails, texts, video, audio ■ Rules defined in the Open Records Act: ● Any person may ask for records for any purpose​. You shouldn’t be required to state a purpose or even who you are. ● If a public body is unable to produce a public record by the seventh working day​ after the request is made, the public body must provide a written explanation ● Denial​ by a public body of a request for access to public records should be in writing and should contain a statement of the specific exemption​ relied upon by the public body for the denial. ● Each public body shall maintain a file of all denials​ of requests for public records. ● Each public body may establish and collect fees reasonably calculated to reimburse it for, and in no case to exceed, the actual cost of searching, reviewing and/or duplicating and, if applicable, mailing copies of public records. ● Any record custodian who denies public-access information​ to an individual or who charges an unreasonable fee​ for providing a public record is liable fora personal fine of $100 per violation​ of disclosure/non-disclosure, PLUS the applicable fees that were to be collected from the requester​. ■ Exemptions to the Open Records Act: ○ Health/medical information (HIPAA) ○ Academic performance reports (FERPA) ○ Investigative offense reports and other documents containing witness statements, police radio logs, taped communications or officers’ daily reports. ○ Reports of hunting accidents involving firearms - National Rifle Association (NRA) wanted hunting accident information withheld in order to protect gun makers from lawsuits ○ Coroners’ reports/death records ● In general, all exemptions​ from the Mississippi Open Records Act have public interest in mind​. ○ Mississippi’s Open Meeting Act​ - ensures that all public bodies, state and local, (which are supported wholly or in part by public funds, or expends public funds) ​hold open meetings on public matters ■ What types of meetings MUST be open to the public? ● Any assemblage of members of a public body where the public body has supervision, control, jurisdiction, or advisory power ● Examples include: ○ "Informal meetings" of a public body and its staff (although no votes are taken by the public body's members) ○ Luncheon meetings of a public body where deliberation and discussion takes place concerning matters within the public body's jurisdiction ○ Work sessions of a public body ○ Joint meetings of two public bodies ○ Local school board of trustees' visit to a public school ■ Exemptions to the Open Meeting Act: Who does NOT have to hold open meetings? ● Courts and juries● Public and private hospital staffs, boards, and committees ● Law enforcement officials ● The military ● State probation and parole boards ● Worker’s Compensation Commission ● Legislative committees and subcommittees ● Meetings that happen by chance or those that are purely social gatherings ● Executive meetings ■ Executive Meetings​ - any public body may enter into executive (closed) session for discussing/voting on public business transactions​ such as: ○ Personnel matters ○ Prospective or actual litigation (the process of taking legal action) ○ Security personnel, plans, or devices ○ Investigations concerning allegations of misconduct or violations of law ○ Extraordinary emergencies posing immediate or irrevocable harm to persons or property ○ Prospective purchase, sale or leasing of lands ○ Preparation of admission tests for recognized professions ○ Location, relocation or expansion of business or industry ○ Line item in a budget which might affect termination of an employee or employees, although all other budget items must be considered in open meeting ○ Discussions between school board and individual students, parents or teachers within the board's jurisdiction regarding problems with the students, parents or teachers ○ Any body of the Legislature which is meeting on matters within that body's jurisdiction may go into executive session. ● Executive Session/Meeting Procedures:○ Minutes must be kept​ for all open and executive sessions of a public body covered by the law; these minutes will be on public record​; the minutes must include​: ■ What members are present and absent ■ The date, time, and place of meeting ■ An accurate recording of any final actions ■ A record, by individual member, of any votes taken ■ Any other information that the public body requests be included ○ All meetings must begin as open meeting​, even if the only matters to be discussed are topics exempted under the law. ■ Three-fifths affirmative vote of all members present is required​ before a public body can go into executive session. ■ The reason for executive session must be stated​ in open meeting and recorded in the “minutes record”​. ○ Meeting times​ are either set by government statutes or they’re stated in the prior meeting’s “minutes record”. ■ Special meetings may be held at other times, so long as a notice is posted. ○ Audio/visual recording of executive meetings is allowed​, unless it is intrusive. ■ What is the media’s place in the matter? ● It’s nearly impossible to fully enforce compliance with the Open Meetings Act ○ Ex. Two aldermen sit in the break room in the City Hall and talk about where to build a new parking lot; that’s technically a “meeting”. ● It’s up to media practitioners to make sure that public bodies know that: ○ Openness is what people expect and is in their interest​.○ Discussions are relevant​, not just votes. ○ All votes must be recorded​ and will be reported. ○ Executive sessions​, especially on personnel, must be limited to the specific purpose​ for why the meeting was closed. ○ Some states have an ‘ultra vires’ doctrine that makes any action taken in an illegally held or closed session void​ or voidable. Mississippi does not. ○ Willful violations of the Open Meetings Act can result in a $500 personal fine and $1,000 for repeat offenses​. ○ The Mississippi Center for Freedom of Information has practical guides on requesting record access​, while the Mississippi Ethics Commission is charged with overseeing compliance with the Open Records Act and provides opinions showing how the laws have been applied to requests​. Chapter 10: PROTECTION OF SOURCES / CONTEMPT POWER / ANONYMITY ● Should journalists/media practitioners have to provide sources for the information that was gathered confidentially? ○ Two scenarios: ■ Journalists being ordered to provide evidence or testimony about knowledge of an event where the sources wished to remain anonymous. ■ Journalists being ordered (or used) to identify sources​ that wished to remain anonymous. ○ This topic was especially relevant and controversial during the Nixon administration (1970s) and the Obama Administration, ​which resulted in the Branzburg Decision​ which states that there is no “journalist privilege” that would protect a journalist’s sources in all instances. ​In other words, information provided to a journalist is not as “sacred” or “protected” as information provided to an attorney, priest, physician​. ○ Conflict of interests ​in determining whether journalists should be required to disclose confidential information upon request by a government entity:■ Public interest in Justice​ - societies need order, need justice, and need people with relevant information to share it with government officials, including criminal prosecutors, who can do something about it. The fact that journalists are the same as all other citizens argues for journalists to be cooperative​. ● Ex. A journalist is driving home and notices a house fire, where he got out to videotape the commotion. The homeowner decides to sue the city, saying that not enough firefighters were sent. If called to testify, the journalist would be required to provide a testimony​ of the event and even turn in the video he/she took of the fire, because - in this case - the media’s independence is not being compromised​ since the journalist was only a witness and any bystander’s video would have sufficed. The only goal of a good journalist is to seek the truth, anyways. ■ Public interest in Media Neutrality​ - journalists are most effective as neutral gatherers of information that is important and relevant to their audience. The First Amendment’s “freedom of the press”, guarantees that the government will not interfere with media practices​ (which contradicts the fact that journalists are “regular citizens”​). ● Ex. Campus media decides to do a story about students cheating on exams. The media interviews people who admit to cheating, saying “everyone does it”. Should the media be required to give the names of the people they interviewed to the administrators of the Dept. of Academic Dishonesty? No​, because their job was to report the truth, not get a bunch of students in trouble. In this case, the media is being asked to compromise its neutrality and lose its independence​. ● Are journalists required to appear in court to make a statement about an event that they reported on? ○ If journalists are issued a subpoena or a subpoena duces tecum - ■ Definitions: ● Subpoena​ - court order to appear and answer questions under oath● Subpoena Duces Tecum​ - a court order for the delivery of certain materials such as notes notes/recordings to a court hearing ○ Subpoenas and Subpoenas Duces Tecum must NEVER be ignored - even by the media​, and failing to tell the truth while under oath constitutes the crime of perjury​, a felony punishable by a prison sentence ○ If a journalist is subpoenaed to court, he/she MUST participate​. ○ If journalists are NOT issued subpoenas - ■ If a journalist is asked to give a testimony in court, a 3-part test (Branzburg Test)​ will be applied (thanks to the First Amendment’s “freedom of the press”) to determine whether or not their appearance in a civil​ court is required/necessary: ○ Is the information being sought from the journalist relevant​ to the case? ○ Does the information being sought from the journalist critical​ in making a final case decision? ○ Is there no alternative​ source for the information? ● In criminal​ cases, the Branzburg test differs slightly from the test in a civil court case. ○ Is there probable cause​ to believe the journalist has information that is clearly relevant​ to a specific violation of law? ○ Is there another source that doesn’t involve First Amendment infringement​? ○ Does the government have a compelling and overriding interest​ in the information? ■ So what’s the point of the Branzburg test? ● The main reason it exists is to avoid “Fishing Expeditions”​, where lawyers would issue subpoenas for reporters merely to find out if they’d gathered information that would be useful for their client​. While journalists do have the option to deny/comply or even charge attorneys for the information they possess, the test requires attorneys to know whether the journalist can provide relevant, criticalinformation ​beforehand. If the attorney can’t show a compelling need to involve the media, then the attorney HAS to leave the media alone. ● How can journalists avoid being called to make a testimony in court about confidential sources? ○ First of all, if a journalist is conducting an interview with a source, they should probably NOT make an offer of confidentiality​ unless they want to appear in court. ■ An offer of confidentiality should only be made to a source if: ● It’s an extreme situation ● The journalist has a high degree of belief that trustworthy information will be provided (otherwise, you’re wasting your time) ● It has been discussed with an editor or news director beforehand and is agreed to be a good decision to accept a confidentiality request or make an offer of confidentiality ■ Rule of thumb: If you, a journalist, would reveal the identity of a confidential source when ordered to do so by the court, the source should know that before you interview them. ● What happens if a journalist breaks his promise of confidentiality to a source? ○ If a source suffers as a result of a journalist breaking his/her promise of confidentiality​, the source may be able to sue​ on a legal theory of Promissory Estoppel. ■ Promissory Estoppel​ - a legal principle stating that a “promise” is enforceable by law, ​even if made without formal consideration, when the promise is broken and results in harm to the individual;​ it is intended to stop the promisor from arguing that an underlying promise that was made should be not be legally upheld or enforced. ● Suing a journalist for promissory estoppel is not common, but it has happened before. ● What happens if a journalist refuses to disclose the confidential source’s information in court? ○ A judge would probably hold the journalist in contempt for failing to obey a lawful court order.■ This is a bench ruling, which is sometimes subject to an evidentiary review, but always results in fines and possible jail sentences​. ● Right to Anonymity ​- ○ From a citizen perspective, the ‘right to free speech’ has never included a specific requirement of self-identify.​ ■ The First Amendment says government shall make no law infringing on freedom of the press or freedom of speech. A law requiring a person to identify himself or herself, generally speaking, would likely be an infringement. There is, in other words, what appears to be a right to be anonymous​. ■ Ex. A person parading across campus with a protest sign of some sort is engaged in freedom of expression. The person has no duty to say who he or she is. ○ Anonymity is a big component in digital media of all varieties. ■ As it relates to anonymous “news” on the internet that results in legal action, ​we have the “Dendrite Test.” ● Dendrite Test​ - ○ Has the plaintiff made a preliminary case that he/she has been libeled based on the specific published statement? ○ Has the web host tried to alert the publisher of the statement? ○ Has the judge decided that the strength of the plaintiff’s case outweighs the “right to free speech”? ○ If the answer to all questions is “yes”, a web host will likely be required to disclose whatever personally identifying information it has about an author ○ Ex. ​Earl has a blog and invites open comments. Repeatedly, “possum42” comments that Earl is a child abuser and makes all kinds of defamatory statements. Earl can request a Dendrite Test from the court to seek whatever identifying information can be mined about “possum42”. Chapter 11: FREE PRESS & FAIR TRIAL ● First Amendment VS. Sixth Amendment in criminal cases:■ First Amendment​ - (FREE PRESS) “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise 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.” ■ Sixth Amendment​ - (FAIR TRIAL) “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury​ of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” ● Even if a criminal defendant would prefer a nonpublic trial, the courtroom, documents and processes must remain open​; giving the public access to the actions of courts is essential ○ Issue: The press should be free to report on a criminal trial, but - at the same time - the jurors must not have a preconceived opinion about the defendants in the trial. ■ Impartial Jury ​- a jury that hears a case with no prejudice and will give a fair verdict​; jurors whose mind is free from the dominant influence of knowledge acquired outside the courtroom (U.S. vs Burr); juror has no fixed opinions​ (Patton vs Yount) ● But how likely is it that no one in a panel of jurors will have preconceived notions of guilt or innocence based on information (regardless of media or other source) obtained before or outside the trial? ○ There’s always a strong media interest and public interest in criminal cases, but it’s just as important to protect the innocent as it is to punish the guilty ● The Constitution says that a person is innocent until proven guilty of every element of a defined crime​ by the prosecuting authority ● When the government makes a criminal accusation and/or deprives a person of liberty, it must be a public act○ Transparency in legal systems is key because the public needs to trust that justice will be done ■ Sometimes law enforcement agencies don’t identify criminal suspects in hopes to solve a bigger crime (like withholding drug arrest suspects in order to get to the drug supplier); this can be lawful or unlawful ■ Impartial Reporting​ - straightforward news reporting of facts such as that a crime has occurred, a person or people have been charged, and a trial will be or is being held ● At what point does reporting a crime taint the jury? ○ Reporting that there is or even may be a confession. ○ Reporting on test results (fingerprints, polygraph, DNA). ○ Reporting on a defendant’s criminal history. ○ Reporting that witnesses are weak or not credible. ○ Stories that reflect a defendant has low morals, character ○ Stories or opinion articles along the lines that crime is out of control or that have grisly details that arouse public outrage. ○ Editorials or other opinion materials that are a “call to action,” essentially indicating a defendant must be punished severely. ● EX. Fred Smoot is arrested and charged with killing his mother, Emma Smoot. The crime, the arrest, the date and place of the trial and such may all be reported in the media without the media being culpable of violating Fred’s constitutional right to an impartial jury. However, if media reports include that Fred has confessed, that his fingerprints were on the weapon, that he earlier served time for killing his father, that his alibi witness is his drinking buddy, that Fred abuses kittens, that his mother begged for her life while being strangled – together or in component parts – can accrue to the point where finding an “impartial jury” in the place where the homicide occurred will be difficult if not impossible. The media is free to report such inflammatoryinformation. No prior restraint. None of this type of reporting is illegal. The issue is how courts respond in order to assure jury impartiality. ○ “Murder” is a legal conclusion; no one has been murdered unless a court convicts someone of murder ○ How does a court ensure impartiality? ■ Controls inside the courtroom​: ● Voir dire​ – Questioning jurors and trusting they are honestly answering regarding their ability to consider only evidence and testimony presented in the courtroom when deciding guilt or innocence; that they can block out any information or opinions formed before trial. ● Change of venue​ – Moving the trial to a location where there has been less or no media coverage of the case. ● Change of veniremen​ – Busing in jurors from a location where there has been less or no media coverage of the case. ● Continuance​ – Waiting until things cool off. ● Admonition​ – Once a trial starts, ordering jurors not to talk to anyone about the case, read papers or blogs, watch TV or engage in social media discussions about the case. ● Sequestration​ – Once a trial starts, keep jurors secluded ■ Controls outside the courtroom​: ● Rules attorneys in Mississippi and most other places face. In Mississippi, the preamble to the full rule reads: “A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.​” Note: This rule is always in force, whether a judge has ordered silence about a specific case or not. ● ‘Gag order’​ is the term most often given to a court order directed at law enforcement, potential witnesses, court officials and anyone else, essentially telling them not to talk about the case. ■ Controls on the media (rarely constitutional)​:● For a court order to the media to be constitutional under the First Amendment, ○ The coverage must be intensive, pervasive. ○ No other or lesser alternative would be effective in curtailing prejudice. ○ The order, as written, would be effective (which, in the Internet age, would be virtually impossible.) ● If a judge that is unfamiliar with media practices casually orders reporters around as if they are trial participants, a reporter can challenge the judge Chapter 12: FREE PRESS & FAIR TRIAL - MEDIA & PUBLIC ACCESS ● Access - under what circumstances can the public/media be banned from courtrooms or from seeing court files?​ (Press Enterprise vs. Riverside Superior Court in 1980) ○ Press-Enterprise: ■ While judges can order non-participants to do specific things during a trial, Press-Enterprise established that American courts should work with as much openness as possible without “accommodating” the press too much​. However, the press is meant to keep courts accountable​ (like they SHOULD be in a democratic society), so accommodation should occur to an extent. ■ Closing a courtroom or refusing to disclose a record should be the last alternative​, not the first; although closure might be the fastest, simplest and most efficient, they are not characteristic of democracy ■ Determining whether the press/public can or cannot attend a trial​: ● Has this court procedure or document traditionally been open or closed? ○ Witness lists, the name of the hotel where jurors are being sequestered and such are not normally public (for good reasons), so not making them public is not as big a deal.○ Other records, such as names of jurors, have normally been public, although this can be troublesome. ● Will press and public access play a positive role in the functioning of the judicial process? ○ An intuitive answer here might be “no.” The press and the public are bothersome, distracting and sometimes create prejudice or confusion or both. ○ The legal answer is very different. Courts, especially at the appellate level, value “accountability” and try diligently to show they are operating in full public view. This feeds their trustworthiness. ● The 5 elements in the test​ to determine if a court can hold a closed criminal trial (public/press NOT allowed): ○ Will closure advance an overriding interest that is likely to be harmed if the proceeding or document is made public? (Examples would be fair trial and/or witness protection.) ○ If there proof that if the proceeding or document is not kept confidential there is a substantial probability that the overriding interest will be harmed? (So there must be more than a mere preference or a hunch or a chance.) ○ Are there alternatives to closure that would provide the same protection? (Testimony in absentia; continuance … use of any other tool.) ○ If closure is still indicated after answering 1, 2 and 3, is the closure narrowly tailored? (Can’t close a whole trial or a whole record to protect one aspect.) ○ If closed, did the court create a record explaining why (so that if an appeal is made, the appeals judges can see if the trial judge followed all the steps and followed them correctly?) ● Does this test apply the same way in civil (instead of criminal) cases? ○ The Supreme Court has NOT specified a test, but lower courts often use the same test in civil trials■ In the case of a “private dispute”​, there is no public interest and the details are none of the public’s business ■ When the American judicial system is called on to resolve private disputes, the resolution is based on public laws​; this means there is a public need for private disputes to be resolved in public, if the dispute goes to court ○ Often times, civil cases are not reported in the mass media because they’re not always “newsworthy”​ and damage suits are often settled outside of court without any public filing ■ EX. A reporter publishes a headline saying a local doctor is being sued for $50million when, in fact, the case is later settled for only $5,000. ■ EX. You decide to sit in on a divorce trial in court, but there is very little media coverage there. Make no mistake, this court and its records are open, just not very newsworthy. ■ Exceptions to open courtrooms/records: ● Youth cases: ○ Most activities in youth courts are closed and their records are sealed. ■ Youths are not always being charged with crimes ■ Youths may grow up and change their ways ● However, Mississippi allows youthful offenders to be charged as adults for crimes such as robbery, rape, murder or burglary​; in these cases, the youths will be fully identified and in an open court ● Terrorism cases: ○ Public trials for accused terrorists could result in the terrorists giving coded messages to co-conspirators and/or could result in the publicity being taken advantage of by the terrorist group ● Will, property, divorce, and child custody cases​:○ Generally, the press does not report on these cases as they are often not newsworthy, except when high-profile/celebrity individuals are involved ■ Access to court documents​: ● Every court decision is based on written records ○ Documents included in the public case file: ■ Evidence introduced in open court ■ Court docket sheet ■ Documents filed in pretrial proceedings ■ Presentencing and postsentencing reports ■ Plea agreements ■ Informations, indictments, search warrants, and supporting affadavits, evidence and other materials related to setencing ■ Juror records ● These documents may be viewed at no charge in person, or copies purchased at different fees. ● Federal courts use www.pacer.gov as an instant repository of court documents. Users must open an account and pay 10 cents per page viewed as a convenience fee. ■ Access to recordings: ● Supreme Court opinions are free on the Internet and oral arguments before the Supreme Court are streamed. ● Federal courts set their own rules. ○ The U.S. Supreme Court allows no cameras or recording of any kind, but does make audio recordings available for download on the same day as arguments are heard. ■ As a journalist, what do you do if a judge says the court is closed to the public/press? ● Call your office immediately. ● Stand, identify yourself and ask to make an objection for the record. ● When acknowledged, ask for time to have an attorney prepare and enter the objection.Chapter 13: REGULATION OF OBSCENE OR OTHER  EROTIC MATERIAL  ● Terms and Definitions: ○ Indecent/Adult/Sexually Explicit​ - describes material that is protected by the First Amendment ■ Can’t be broadcast on public airwaves​ and is shielded from youths, but is otherwise protected as free expression ○ Obscene​ - used to identify material NOT protected by the First Amendment​; not well-defined ○ Pornography​ - a generic term; has no defined legal purpose ■ There is no law that states that commercial pornography is prohibited as it can be seen as “erotic art/artistic nudity”​, which is a form of expression deemed legal​ under the First Amendment ■ However, pornography is subject to court decisions and contemporary moral standards​, so it CAN be seen as an “obscene” and therefore illegal act ● The History of Regulating Erotic/Obscene Material: ○ It may come as a surprise, but “dirty pictures” are NOT a product of the internet ■ Some cave drawings and other ancient/classical artworks are erotic ○ However, the belief that this erotic material should be regulated is not a new concept ■ No satisfactory solution has been defined through history; there is no clear line between what is erotic (protected by the First Amendment)​ and what is obscene (NOT protected by the First Amendment) ● American Society’s Perspective on Erotic Material: ○ Objectification of Women​ - ■ Some people think pornography objectifies, harrasses, demeans, and discriminates against women, promotes gender inequality and regards women as second-class citizens ■ However, the argument against this viewpoint is that the participants are “willing” ○ Immoral​ -■ Many people of faith say that explicit material appeals to base instincts and is morally destructive and corrosive to marriage and family life ■ This viewpoint places no special regard to the objectification of women, but rather states that pornography is just not good for society as a whole ○ Harms Physical/Mental Health​ - ■ New studies show that engagement with pornographic material is harmful to men’s physical and mental health ■ Pornography can turn into an obsession/addiction, which leads to the inability to engage in a real physical relationship ● American Government’s Perspective on Erotic Material: ○ For the government, the adult entertainment industry generates taxable commerce​ - a positive force in the economy ○ It’s viewed similar to gambling - not healthy, per se, but extremely profitable for public treasuries ■ For this reason, there is a government requirement that all televisions sold in the U.S. must have channel-blocking technology called V-Chip ○ There is no national legal standard as to what is legal and illegal in the adult entertainment industry; each state is free to write specific definitions of what is deemed obscene ○ Miller vs. California (1973)​ - defines a legal test (the Miller test​) to identify if a work is obscene and falls outside the First Amendment protection of free expression; Miller test has 3 parts: ■ A work is obscene/illegal if an average person​, applying contemporary local community standards, finds that the work, (as a whole) appeals to prurient* interests​. *Prurient means to cause arousal or appeal to sexual interest ● The key here is that the work must be considered as a whole​; if there’s a scene in a movie that includes a possibly obscene scene, the whole movie must be deemed unfit for entertainment purposes for the work to be considered illegal ■ A work is obscene/illegal if it depicts in a patently offensive way sexual conduct specifically defined by applicable state law■ A work is obscene/illegal if it lacks serious literary, artistic, political or scientific value ● Self-Regulation​: ○ The responsibility ​of content regulation is not left to the government, but it is left to the marketplace, which is fairly effective ■ Facebook, for example, does not allow nudity, and YouTube does not permit erotic content - these are business decisions​ made by these companies, despite the First Amendment right to create erotic content ○ Businesses of all types are able to determine what magazines, books, films and/or other material they provide to their customers; businesses are not required to stock any material they consider to be offensive ○ Although V-Chip channel-blocking technology is required for televisions, the ratings assigned to TV shows are decided by industry committees ○ The Motion Picture Association of America set up the range of ratings for films​ - G, PG, PG-13, R, and X; industry committees assign these ratings to films based on their content ■ Individual theaters can decide what films are/aren’t shown ■ Filmmakers can choose not to have their films rated ● Federal Laws and the Internet: ○ The Communications Decency Act and the Child Online Protection Act have been found to be largely ineffective in shielding minors from online explicit material ○ The​ Children’s Internet Protection Act require computers in libraries, schools and other public places to have filters that block adult sites ■ The Act also states that a site may be unblocked at the request of an adult ○ There are laws against the exploitation of children - child porn and child solicitation​ (the act of asking a minor to perform an illegal act) ■ If the words and activities constitute a crime outside the internet, they constitute a crime on the internet. ● Sexting​: ○ By definition, it is the sending of nude or sexually suggestive photos by computer or cellphone ○ If the sending/receiving of sexts is consensual, non-commercial and private between adults, it is generally considered legal○ If it involves people under 18 years old, it is considered to be illegal ■ Some states have enacted criminal laws against teen sexting ■ Mississippi has not; in Mississippi, minors caught sexting can be persecuted for the distribution of obscene material or child pornography ■ Minors sexting other minors is a felony typically punishable by 5 to 40 years in prison, plus the minors will be registered as sex offenders for the rest of their lives Chapter 14: COPYRIGHT  ● Terms and Definitions: ○ Immaterial/Intellectual Property ​- used to describe anything created by humans that is not tangible​; products of personal initiative; creative, original products of the mind ● Ownership​: ○ By conventional understanding, ownership has to do with the materials that belong to a person ○ However, for our purposes, ownership has to do with the combination of rights, interests or powers to which a person has legal claim ■ Examples: ● You may own a North Face jacket, but you do not own the North Face logo ● You may have an iPhone app, but you cannot reproduce that app and sell it to others ● You may have recorded a TV show on your DVR, but you can’t upload that to a website and share it with others ● You may buy a ticket to a sporting event, but you don’t own the event ○ The law requires examination of ownership in detail, and specifics are very diverse depending on the conditions ■ Examples: ● A home is subject to a lease or mortgage, tax liens, and other factors ● Real estate is controlled by covenants, zoning, and other land use regulations or ordinances● A ticket to a sporting event is tangible, but it conveys immaterial rights - the right to attend, to watch, to listen, to take photos, etc ○ The owner of an event decides what rights the ticket confers and the ticket holder agrees to accept those limited rights ○ In media work, it is very important to understand who owns what rights in what content ● Marketability​: ○ A person can use, sell or give away the assets he/she owns, but cannot sell or use what he/she doesn’t own, whether the property is material ​(like a car) or immaterial ​(like the lyrics to a song) ○ Monetize/Incentivize​ - the act of using an idea and creating a commercial market for it; this concept aids in society’s innovation, improvement, experimentation and creative thought ○ Due to the creation of the internet, the monetization of material and immaterial property has evolved ■ Examples: ● Your parents bought records or CDs to listen to music, which they can sell if they would like to. But the music you buy from iTunes is not legally redistributed/sold. ● Patent, Trademark, and Copyright: ○ The three areas of black-letter law that provide a framework for dealing with the monetization of immaterial property ■ Patents - ● Not issued to ideas, philosophical/conceptual material or pre-existing/”discovered” items ● It is a limited property right that the government offers to inventors in exchange for their agreement to share their inventions with the public ○ If the government patent office deems a submission “original”, then the patent-holder will agree to make his invention/information public and will be the exclusive license-seller for 20 years ● Patents themselves may be sold, licensed, transferred, given away, or simply abandoned○ For this reason, patents are strategic business assets ■ EX. A camera lens cannot be patented because plenty of camera lenses already exist. An attachment ring or a new method for zooming COULD be patented, and no one else could copy that design for 20 years unless they buy the patent from the patent-holder ○ A product may have several different patents associated with it ■ EX. A smartphone could have as many as 200 patents on it. ● Patent areas (new inventions/new discoveries): ○ Machines, processes ■ EX. Dolby’s noise-reduction technology ○ Designs​ such as furniture, tire tread patterns or belt buckles ■ EX. Velcro ○ Plants​, but only those created using cutting or grafting (not through the use of hybrid seeds) ○ DNA sequences or genomes ■ Trademarks - ● Words, symbols, or devices​ (or a combination of these) that are created and protected to differentiate a person or a company’s goods or services from those of competitors ● Functions of a trademark - ○ They differentiate​ a product from same or similar items ○ They identify the source or maker ○ They tell someone this is a standardized item ○ They provide the most useful tools available for advertising and promotion ● A trademark is obtained by creation and use and may last an unlimited amount of time so long as the trademarked product is being used and is protected by informing improper users of their trespass ■ Copyright -● Any original work of authorship fixed in a tangible medium of expression can be copyrighted ● Originated in the UK about 500 years ago as a way of rewarding​ those who created books that were pleasing to the king ● The duration of copyrights are between 70 and 95 years and are defined in Article 1, Section 8 of the U.S. Constitution ● Exists the moment the work is placed into a tangible form of expression, but does NOT add any legal protection ○ Adding the words “COPYRIGHT © (current year) (name of Copyright owner)” gives notice to the world that legal protection is being claimed ○ In a “work made for hire”​ case, a copyright would not belong to the actual creator of the work; the employee would get a paycheck, and whoever is paying him would own the copyright to the work​. ● Rights associated with copyright - ○ A reproduction of the work ○ Preparation of derivative works, such as a soundtrack from a movie ○ Distribution of the work ○ Performance or Display of the work ○ Public digital performance of a sound recording ● Exceptions to this “work of authorship”; things that can NOT be copyrighted - ○ Facts ○ Lists (compilations of information) ○ Utilitarian goods - products that exist to produce other things ○ “Discovered facts” - methods, systems, mathematical principles, formulas and equations ■ EX. Pi (3.1415926) always existed but it was “discovered” by Archimedes. Since it was discovered, it couldn’t be copyrighted. ○ Fashions ○ Domain names/URLs○ Court/government documents ○ Names ○ Recipes ○ Dance routines, etc ● “Fair use” -​ a rule of reason to balance a creator’s right to compensation for his work against the public’s interest in the widest possible dissemination of ideas and information ○ Determining what is “fair use” - ■ The purpose and character of the use ● Copying for teaching, research, comment or criticism is allowed, but its legitimacy will be questioned ■ The nature of the original copyrighted work ● For example, if something is still actively marketed in the marketplace, there will be a serious case if the copyright is infringed upon. If something hasn’t been sold in the marketplace for a while, there will be a less serious case when its infringed upon. ■ The amount or the portion used in relation to the copyrighted work as a whole ● For example, when SNL does a skit based on a real life film or event, the copyright-holders can take legal action if they want to, because someone else is profiting off of their artistic labors. ■ The effect of the use on the potential market for or value of the copyrighted work. ● While copyright has an ethical component in the nature of plagiarism being a bad practice, a dishonest practice but not necessarily an illegal practice, copyright exists to protect the right of people to monetize their original works and so it is any interference with that aspect that leads to litigation.● Claiming copyright infringement - ○ A plaintiff who can prove specific losses of revenue with certain specificity may recover that amount in an infringement case ○ A plaintiff who cannot prove actual damages may recover statutory damages ranging upward from $750. ● In media work, there is often confusion about copyrights. ○ Facts cannot be copyrighted, but the presentation of facts can be. ○ EX. A news station can report on a story on a copyrighted broadcast, but the story is not exclusive to that network. Another news network can also report on the same story. It would only infringe on the copyright if the broadcast was duplicated and played on the other channel. ○ Plagiarism is different than violating trademarks, patents and copyrights. ■ Plagiarism is an ethical concept, while trademarks, patents and copyrights are legal matters ■ A plagiarist is a cheat; a trademark violator is a thief Chapter 15: REGULATION OF ADVERTISING  ● History of Paid Advertising: ○ Main revenue source for media operations for the past 150 years ○ Platform of advertising (print, TV, digital, radio, etc) has proven to not be relevant ○ Marketers knew consumers wouldn’t watch TV or read the newspaper “just for the ads”, so they pay to piggyback on editorial content like sports, news, feature stories, comics, etc ■ For example, in the sports section of the newspaper, you might see ads for Hibbetts. Or on a country radio station, you may hear an ad for Hunter’s Hollow. ○ Today, marketing is in a stage of evolution with the increased use of the internet and social media platforms■ Advertising today can be either paid or unpaid, but - regardless - marketers are still tasked with finding and reaching their target audiences at the lowest possible cost ■ The Golden Rule of Advertising: Reach the most for the least! ● Terms and Definitions: ○ Advertisement​ - any communication in any form primarily designed to elicit a response related to a product or service ■ In legal terms, an advertisement is called “commercial speech​” ● Commercial speech can be free media or paid media; it makes no difference ● It will almost always reference a specific product or service ● Advertising/Commercial Speech and Regulation: ○ Advertising has been and continues to be heavily regulated at the local, state and federal level​ by a wide array of statutes with a wide array of purposes ● For example, ○ Tobacco ads are regulated to promote public health ○ In some areas, billboards/signage are limited/not allowed for aesthetics ○ Specific types of disclosures are required for specific products and services ■ Regulation before 1975 vs. Regulation after 1975: ● No one considered advertising to have any form of free expression protection, due to the founding basis of the First Amendment ● In the 60s and 70s, government philosophies were changing, and the role of the government was seen in more and more areas of individuals’ lives ○ For example, ■ As people became more diet-conscious, regulations regarding food labeling increased. ■ As people became more safety-aware, wearing a seat belt became a requirement. ○ These things occurred as part of the expansion of civil rights to people who had been targeted for discrimination​. Where it had been fine to advertise“white waitresses wanted” or “Catholics-only” apartments, the public asked government to drive changes. ● The 1975 Bigelow Decision​ - put into effect the law that the government could place reasonable restrictions on time, place, and manner of speech;​ the relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas. ○ As a result of the Bigelow Decision, we have advertising regulations like this: ■ A law against advertising prices of prescription drugs favored local family drug stores in competition with a rising wave of discount chains. ■ A law against placing “for sale” signs in yards was an effort to curb “tilting,” common in the 1970s when a minority family moved into an all-white neighborhood. ■ Commercial Speech Doctrine: ○ The Commercial Speech Doctrine states that.. ■ The First Amendment does not protect either false/misleading ads or ads for unlawful goods or services ■ Truthful advertising may be regulated by law ONLY if.. ● There is a substantial state (public) interest to justify the regulation. (Does this help the public?) ● There is evidence that the regulation directly advances the state interest. (Can’t be vague or overbroad). ● There is a reasonable fit between the state interest and the government regulation (narrowly tailored). ○ For example, tobacco ads can be regulated because... ■ There’s a public health issue in that smoking is harmful.■ Banning tobacco ads will result in reduced sales which, in turn, improves public health. ■ Tobacco sellers are still free to operate. ■ Truthful ads require no First Amendment analysis; truthfulness is regulated, but not on a First Amendment basis ● The Right to Refuse Ads: ○ Given that there’s a free speech component to advertising, does a person wishing to buy an advertisement have to buy advertising space/time from any vendor? ■ No; the purchase of an advertisement is a private transaction between private parties;​ the First Amendment is not implicated (involved) in any way. There is no provision in the Constitution that requires one private party to do business with another private party. ● For example, if CBS managers decided today that - because there are too many cars in America - the network would no longer accept car ads; that’s entirely up to the owners of CBS. GM, Ford, Toyota and the others have no “right” to buy ads on CBS. ■ There is a “must carry” rule related to political advertising. ​To prevent a media outlet from tacitly endorsing one candidate by refusing the advertising of another, ads from political candidates/ballot issues must be accepted. ■ There is also a “don’t carry” rule for ads for housing or employment that would promote discrimination on a protected basis.​ No ad seller may accept advertising for housing or employment that in any way would tend to promote discrimination based on: ○ race ○ national origin○ marital status ○ religion ○ gender ○ familial status ● For example, Customer wants to buy an a ad with this copy: Single woman with no kids needed to provide housekeeping duties. Non Smoker. There is lots of discrimination in this ad copy. Gender, familial status, tobacco – but only two are protected. Legal version: Housekeeper needed. Must be non-smoker. ● “Compelled Speech”​ - a situation in which a private person is forced to participate in speaking (EX. The Pledge of Allegiance) ○ Compelled Speech and Private Citizens: ■ In 1943, the Supreme Court ruled that government agents cannot “compel speech”; they can’t require us to pray, say how we voted, etc. ○ Compelled Speech and Advertising: ■ Began with the “beef case” where cattle growers were required by law to pay into a marketing fund, which would be used to buy ads. ■ Regulatory authorities also impose “compelled content” in certain types of advertising. ● For example, ○ Car ads with a specific price must contain the model number. Medicine ads must list risk factors. ○ Tobacco packaging must contain warnings. ○ Political ads must state who paid and whether the candidate approved. ■ Regulation of False Advertising: ● The Lanham Act​ - the key federal regulatory statute related to false advertising; states that... ○ A person who generates any false designation of origin, false or misleading description of fact, orfalse or misleading representation of fact, which, in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origins of his or another person’s goods, services or commercial activities​ is liable for civil damages. ○ The Basic Tenets of the Lanham Act: ■ One can’t misrepresent own products. ■ One can’t misrepresent the competition. ○ Falsity vs. Misrepresentation: ■ EX. A restaurant could print an ad showing the “winner of a car” holding keys and standing by a Ferrari. The ad doesn’t say the patron won THAT car (may have won a 2002 Saturn), so the ad wasn’t false. It was a misrepresentation, which is equally illegal under the Lanham Act. ■ Other Regulations of Advertising: ● Self-Regulation of Media Companies - ○ The National Advertising Division (NAD)​ of the Better Business Bureau serves as a review/recommendation/arbitration group ■ NAD receives complaints from competitors. ■ Complaints are reviewed and recommendations made ○ The Children’s Advertising Review Unit (CARU)​ does the same thing as it relates to ads targeting young people. This is often in compliance with the Children’s Online Privacy Act. ■ Federal Agencies/Laws of Advertising Regulation: ● The Food and Drug Administration (FDA) ​establishes rules and regulations regarding the marketing of food and medicines. ○ EX. The definition of “organic” and “low-calorie” are, generally FDA responsibilities. Also, when prescription medicines are advertised, all of the side effects and dosage information are a requirement of the FDA.● The Federal Trade Commission (FTC)​ has many “consumer protection” functions related to labeling and disclosure of pricing (costs). It also has Lanham Act enforcement responsibility. ● Federal Laws: ○ Bait & Swtich Laws: ■ When an advertiser markets a product at a super discounted price, and then the consumer arrives to see the product is sold out, but another (more expensive) similar product is available. ○ Do Not Call Lists: ■ The “owner” of a phone number can enroll to avoid telemarketing calls. ● Exceptions: Telemarketers with “existing relationships”, media companies, candidates for public office ■ Telemarketers are required to purchase the list and program their devices to avoid certain numbers on the list ○ The CAN-SPAM Act: ■ Limits unsolicited faxes and emails ■ States that mass-senders must: ● Avoid false header claims; e.g. “Free Vacations in the Bahamas.” ● Contain WORKING opt-out/unsubscribe links and process requests within 10 days. ● Contain REAL names and addresses. ● Warn if sexually explicit. ○ Punitive Measures for Failing to Comply: ■ Money damages/compensation ■ Corrective/Apologetic Advertisements

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