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UA / OTHER / MC Mass Communications 401 / What is the function of the collateral bar rule?

What is the function of the collateral bar rule?

What is the function of the collateral bar rule?


School: University of Alabama - Tuscaloosa
Department: OTHER
Course: Mass Communication Law & Regulation
Professor: Dr. matthew bunker
Term: Spring 2017
Tags: MC401 and masscomm
Cost: 50
Name: MC 401 Test 3 Study Guide
Description: This study guide covers: Chapters 10-12 Previous material that will be on the final
Uploaded: 04/26/2018
8 Pages 48 Views 6 Unlocks


What is the function of collateral bar rule?

Definitions to know:

1. Sixth Amendment: gives right to every individual for a “speedy and  

public trial by an impartial jury”

2. Sheppard techniques: suggestions from the Supreme Court to trial  courts for how to deal with famous cases in order to get an impartial  

trial; not required to do any

3. Gag order: another term for prior restraint

4. Positive liberty: government has to provide assistance to you to help

carry out your right

5. Negative liberty: government solely must Sleave you alone and you  

have the right; example of this if First Amendment

What is the purpose of shield law?

6. Post-publication punishment: different from prior restraint in that  

speech can be disseminated, then the government punishes speaker  7. Civil contempt: coercive and designed to motivate cooperation;  

effective in trying to get media to reveal sources

8. Criminal contempt: punishment for showing disrespect for the court;  

fixed term

9. Collateral bar rule: affects how you approach unconstitutional  orders; always follow judicial orders even if you may think its  

unconstitutional and then appeal it

10. Branzburg test: first route to get protection through the  We also discuss several other topics like When situational influences occur?

constitution that does not apply to any grand jury scenarios  11. Shield law: second route to get protection that is added by the  

What is the function justification?

state to the constitution; protections are extremely inclusive but only 3

businesses are protected

12. Promissory estoppel: courts will protect the individual that was burned even if there are no written documents; journalists can be sued for this and are not protected by First Amendment

Cases to know:  

1. Sheppard v. Maxwell  

2. Cox v. Cohn

Chapters 11 & 12

∙ Sheppard v Maxwell Alternatives (Pros and Cons) - Facts of the case: 1966; Sheppard is believed by many to have  murdered his wife although he says an intruder knocked him out and  killed her.  

- Landmark case: U.S. Supreme Court lays out a framework for how to  get someone a fair trial to uphold their Sixth Amendment right that has experienced prejudicial publicity Don't forget about the age old question of What is ‘water smart’ products and why is it said to be beneficial?
Don't forget about the age old question of What is an example of static equilibrium?

- This lead to the Sheppard Techniques 

a. Change of venue: move the trial somewhere where the public hasn’t  been exposed to all the publicity; other cities won’t know about it or  not be as emotional about it (if it has gained national attention)

b. Change of venire: changes the jury pool; bring new people into the city c. Continuance: post-pone the trial until the media calms down; however  must consider that it may rev back up when the trial is about to begin;  witnesses die, move away, forget the incident, etc.  

d. Severance: give defendants separate trials if the case has a villain and  associate type of set up so the associate doesn’t get as much backlash e. Careful voir dire: voir dire = jury selection; weed out prejudices and  eliminate biased jurors  

f. Sequestration: seclude a jury so they don’t see any media bout the  trial; however, only protecting them from media during the trail and  they may have seen news coverage before called in for jury duty

g. Judicial Admonition: jury is instructed not to discuss the case with  anyone  

h. New trial: last resort; can be very traumatic so getting to this point  should be avoided if at all possible  Don't forget about the age old question of How do you calculate the weighted average cost of capital?

∙ Remember the Sheppard Techniques 



C = 4 C, 2 S, J & N 






∙ Prior Restraint in Criminal Context

- Can a prior restraint be put on information and disallowed for the  media to report it in order to give someone a fair trial?  

- Nebraska Press test: ALL 3 things must be proven in order to have a  prior restraint that is constitutional Don't forget about the age old question of How would you describe the habitat of cliff swallows?

a. News coverage must impair defendant’s right to a fair trial under  the 6th Amendment

b. No alternative measure would be adequate short of a prior restraint; speech must be restrained in order to give defendant a fair trial c. Prior restraint must actually work/succeed  If you want to learn more check out What comprises an economic thinking?

- Many cases will fail this test  

- Gag order that is constitutional: Discourage jurors to talk about the  case or seek information on it; however, it’s often unconstitutional to  tell media that they can’t report something once they have knowledge  of it

∙ Post-Publication Sanctions 

- Different from prior restraint in that speech can be disseminated, THEN government punishes speaker  

- Landmark case: Cox v. Cohn – sexual assault victim name revealed  against their wishes and press gets sued because of publication of  private facts  

- Other cases: Landmark Communications v VA; Smith v Daily Mail - Take away from these cases: First Amendment can trump privacy  interest of victim; if media gets information they want to publish, not  allowing them to do so is a violation of First Amendment

∙ Right of Access to Courts

- Issue brought on by Richmond Newspapers vs. Virginia  - Positive liberty vs. negative liberty: see above definition

- Richmond Justifications: in favor of open trials

1. Historical justification: criminal trials have been open since Anglo American law since 1066; trials were open when they drafted the First  Amendment

2. Function justification

a. Perceived fairness: public needs to think the trial was open and fair  and that nothing was hid from them  

b. Actual fairness: if a judge and jurors are being watched, they will  naturally do a better job; having the extra pressure makes the trail  fairer

- Must have an extremely compelling reason to close a trial (example is  a child that is testifying because he/she was sexually assaulted)  

- Post-Richmond Newspapers

a. Press-Enterprise I 91984): right of access also applies to jury  selection

b. Press-Enterprise II (1986): right of access also applies to preliminary hearings; this is important because many trails send here in  settlement and plea

∙ Cameras in Court

- Where are cameras allowed in court?  

A. State courts = YES

B. Federal courts = NO (includes trial, and supreme, but sometimes  appeal courts will allow cameras)  

Chapters 10

o First Amendment Protection of Confidential Sources - The First Amendment provides limited protection for confidential  sources

- The source is Branzburg v Hayes (1972)

- Branzburg Test: protection through the constitution

- This test never applies to grand juries; the journalist always loses there - Must have ALL 3 in order to force the reporter to burn his/her source:  a. Reporter must have clearly relevant evidence

b. Information can’t be obtained another way; can only come from  reporter

c. Must be a compelling interest in the information  

- Branzburg being applied 

- How likely to least likely are journalists to win each case and why?  1. Civil case with a confidential course: Most likely to win because  money is the only thing on the line as opposed to someone’s freedom  or life

2. Criminal case with confidential source: More likely because can  usually obtain facts through evidence and science so the reporter may  not have to burn the source

3. Journalist as eyewitness in civil case: Less likely; may have to  testify/share information

4. Journalist as eyewitness in criminal case: Least likely/ will have to  testify/ share information

o Shield Laws 

- Second route to getting protection after the constitution - In this instance, the state can provide more protection because they  added this shield law on top of the constitution (constitution is the floor not the ceiling)

- Alabama Shield Law: protects you before a grand jury which is rare and is very inclusive in protection however it only protects newspaper,  radio, and TV.  

- Issues with the Shield Law:  

a. How much media is protected? Some covered, some not, especially in  Alabama

b. What proceedings are covered? Alabama covers all proceedings but  many exclude grand jury so you aren’t protected then

c. Does it only protect the name of the source? Some only protect the  name but you may be forced to talk about other things besides the  name

d. Publication requirement? Until the thing is out there, you have no  protection

- Shield Law vs. Constitution

Shield Law Constitution 

Covers more situations (grand jury) covers less situations Can be taken away from the state Never going to be repealed Can be unconstitutional in some situations Can be taken more  seriously

Earlier Material to Know  

o First Amendment Theories

1. The First Amendment: “Congress shall make no law… abridging the  freedom of speech, or of the press…”; text doesn’t get you very far  because it’s vague

2. Originalism: What did the people that wrote the constitution intend?  - Must put yourself in their mindset at the time

- Critiques of this theory:  

a. Anachronism - people that wrote the constitution wanted us to  expand on it to fit our own time; they did not intend for originalism  to be created

b. Differing understanding – there were a variety of ideas back then  and many people didn’t agree with each other; no way for us to  specify what they meant

c. Translation problem – writers of the constitution couldn’t have  imaged what our society would be like today; we improvise to adapt to new challenges those in the 1700s didn’t face

d. Blackstone problem – specific to the First Amendment; our  understanding of free speech is much different today; almost  impossible to relate it to today

3. Self-government: Created my Meiklejohn

- Believed the purpose of free speech is to promote an effective  demoncracy

- The people are the rules and rulers in a democracy so they need good  information to make decisions

- All view points must be exposed to the people in order to see all sides  of a matter so the people can be well-informed and make educated  decisions

- Critiques of this theory:

a. Focuses heavily on political speech and doesn’t include all other  forms of free speech  

4. Individual Autonomy:  

- Free speech is about self-expression and achieving self-realization - Critique of this theory:  

a. Where do you draw the line of what is allowed? What if someone  wants to express themselves by forming a racist group that harms  others?  

5. Marketplace of Ideas: diversity theory

- Free speech helps us arrive at the truth

6. Checking Value Theory: Created by Vincent Blasi

- Believes main purpose of the First Amendment is to prevent  governmental misconduct

o How is a First Amendment Case Decided?  

Step #1: Is government action involved

- Is the government trying to stop you from speaking?  

- Free speech only applies to government action, not private entity  action

IF YES: Continue to Step #2

IF NO: First Amendment doesn’t apply  

Step #2: Is the government action impeding activity that is predominantly  expressive?  

- Predominantly expressive: is your communication more speech than  action

IF YES: Continue to Step #3

IF NO: First Amendment doesn’t apply

Step #3: Does the speech fall into an unprotected category?  - Unprotected = obscenity, fighting words, true threat, national security,  copyright speech and perjury

- If your speech falls into any of these categories, then the First  Amendment doesn’t apply because of it’s unprotected label  IF YES: Apply the rational scrutiny test or minimum scrutiny: the  government will win unless it has no legit interest in regulating or its law is  irrational or arbitrary

IF NO: Continue to Step #4

Step #4: Does the speech fall into moderately protected category or is the  law a content-neutral time, place or manner regulation?  

- Content-neutral: The government isn’t trying to regulate the actual  message just where, when or how  

IF YES: Apply intermediate scrutiny – the law if valid and the government  wins if the law regulates the right amount of speech and the government has a “good not great” interest in regulating the speech  

IF NO: Continue to Step #5  

Step #5: Fully Protected speech  

- This is religious, political, cultural, etc.  

- If a speaker gets to this step of the process, they usually win - Government must have a fantastic reason as to why the speech  shouldn’t be protected

IF YES: Apply strict scrutiny – the law is valid and the government wins if the right amount of speech is regulated and the government has an extremely  compelling reason of interest or to advance a state interest

o Libel  

- Libel explained: Written form of slander – more serious because it  exists over time and can reach a lot of people in its permanent form;  broadcasting in considered libel because although it’s technically  spoken, it reaches a lot of audiences through air waves and all  audiences listening/watching

- Danger areas:  

a. Extreme political beliefs

b. Mental illness

c. Professional ethics/competence

d. Loathsome disease

e. Unchastity

f. *Accusing someone of a crime

- What does the plaintiff have to prove?

a. Publication

b. Identification

c. Defamation

d. Fault

- Defenses against Libel

a. Retraction

b. State of Limitations

c. Sec. 315 of Communications Act

d. Consent

e. Opinion

f. Rhetorical hyperbole

g. Truth

h. Pure opinion

i. Privilege

o New York Times v Sullivan

- Landmark case that established the actual malice standard - Actual malice requires that the plaintiff (if a public official or public  figure) must prove that the person who made the statement knew the  falsity of it and published it anyway or had reckless disregard for the  truth and failed to check if it was true or not.  

- Because of his, many public officials and public figures have a hard  time proving actual malice and winning defamation cases

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