MASS MEDIA LAW
MASS MEDIA LAW MC 3080
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MC 3080 Midterm Review Cases to know Schenk v US Clear and present danger test 0 Clear and present danger test first stated here 0 Expression should only be punished only when words are used to create a clear and present danger and will bring on evils that congress has right to prevent o Schenk and other socialist were punished for distributing a pamphlet urging that citizens were duty bound to oppose the draft Few people received a flier but didn t persuade anyone Presented clear and present danger because the fliers weren t political speech but speech on political matters that they were injections like falsely yelling fire 0 Punishment of which raised no First Amendment conflict 0 Freedom of expression didn t have special status Brandenburg v Ohio clear and present danger test 0 Court overturned the conviction of KKK members for ractist provocations o KKK leader convicted for advocating unlawful methods of industrial or political reform o Brandenburg was fined and sentenced from 1 10 years in prison for telling Klansmen at a televised meeting that to take revenge on President Congress and Supreme Court 0 Supreme Court overturned conviction bc the statue permitted convictions for advocacy of illegal action at some distant time 0 To be constitutional an advocacy statue can punish only speech that is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions Texas v Johnson flagburning content regulations 0 court overturned conviction ofJohnson who burned a flag at the Republican National Convention 0 protesting policies of Regan Administration 0 was convicted under TX law prohibiting intentional desecration of the flag that caused serious offense 0 SC ruled that the statue unconstitutionally punished political expression 0 His act posed no dangerous riot Chaplinsky v New Hampshire fighting words 0 Convicted for calling a marshal in Rochester NH a racketeer and Facist 0 Court said that those words would provoke the average person to physical retaliation 0 Chap had no First Amendment rights because he said fighting words 0 Outside constitutional protection bc aren t valuable to any ideas Miami Herald v Tornillo compelling speech 0 SC struck down a section of the FL Election Code requiring a publisher to print a free reply by candidates attacked by a paper 0 Herald refused to publish a reply to the paper39s criticism of Tornillo a candidate for state legislature 0 Paper charged that Tornillo had led an illegal teachers strike a few years earlier 0 Tornillo argued that the First Amendment rights of the public would be served if dominant newspapers were required to print replies from political candidates 0 SC ruled that compelling newspaper editors to publish replies violates the First Amendment 0 SC said requiring publication would unconstitutionally limit the variety of public debate bc the replies would increase cost of printing require additional composing time and take up space devoted to other subjects 0 SC feared that editors forced to run political replies would avoid controversial election coverage 0 Limits public debate Tinker v Des Moines School District First Amendment rights of Students 0 SC said the first amendment protected expression by HS students as long as it wasn t disruptive obscene or violative of rights of other students 0 High school students wore black armbands as a silent political protest to the war in Vietnam Hazelwood v Kuhlmeier First Amendment rights of Students 0 SC upheld deletions of 2 stories from the student paper bc principle deleted 2 articles from the paper about teen pregnancy and divorce 0 The paper wasn t a public forum where school officials would be prohibited from regulation expression 0 Paper was produced in journalism classroom under supervision of a teacher for academic credit 0 School could impose any reasonable regulation on school sponsored expression 0 Constitutional for principle to remove articles to protect younger students from inappropriate material allow the school to disassociate itself from material it doesn t like and to protect privacy of students and parents 0 Allows officials to regulate HS expression Kincaid v Gibson First Amendment Rights of Students 0 Administrators took yearbooks because they objected to the poor quality and theme of the yearbok o Yearbook limited public forum 0 Rejected the university s claim that the SC s Hazelwood decision allows university officials to impose reasonable regulations as high school officials can Hosty University failed to demonstrate the compelling interest needed to justify a prior restraint on content in a public forum at a state university v Carter First Amendment Rights of Students Governors State University could censor the campus paper like a high school paper if it was not designated a public forum Court ruled that the administrator who censored the paper could not be held liable because she could not have know at the time whether the paper was a public or nonpublic forum Near v Minnesota Prior Restraints 0 New Y 0 United 0 SC struck down a state nuisance statue that permitted an injunction to halt malicious scandalous or defamatory publications Near accused Minneapolis police chief of failure to pursue a jewish gangster who controlled gambling bootlegging and racketeering in the city Trial court declared the paper a nuisance and issued an injunction to bar Near from publishing more scandalous stuff SC reversed decision bc statue imposed unconstitutional prior restraints bc it permitted courts to meddle in publication of expression critical of public officials Unconstitutional to bar all publications because statements might be libelous ork Times v US Injunctions Pentagon Papers case SC refused to bar publications of a series of stories in the NYT and other papers based on a secret Pentagon study of the Vietnam War Documented how Republican and Democratic administrators had misled the American people about the nation s objectives in the war Provided classified documents to the Times without authorization SC said that the first amendment did not permit an injunction Paper could publish because the government hadn t met its heavy burden of proof to over come that prior restraints are unconstitutional States v Progressive lnc injunctions Court in wisconson stopped publication of an article about the hydrogen bomb The article described how to make a bomb Article presented an immediate direct irreparable harm to the interests of the US The article could allow a nation to move faster in developing weapons Government dropped the suit because information similar to that article was published elsewhere New York Times v Sullivan Fault SC said for the first time that the First Amendment protects criticism of government officials even if the remarks are false and defamatory Public officials cannot successfully sue for libel unless they establish that defamation has been published with actual malice knowing falsity or reckless disregard for the truth Ended the law for seditious libel in the US Gertz v Welch fault 0 SC said that private libel plantiffs are required to prove NYT actual malice 0 SC said private libel plantiffs would have to prove that a libelous publication was published with fault but a lesser degree of fault as public officials Ended strict liability for the press in privateperson livel suits o Gertz prominent civil rights attorney in Chicago 0 Representing family of boy who was killed by police officer 0 Article printed that said Gertz was part of a nationwide conspiracy to discredit public officials and replace them with a national police communism 0 Court determined Gertz was a private person who did not have to show actual malice Milkovich v Lorain Journal Co protection of opinion 0 SC said the jury might conclude that the term liar in a column was a false fact because it could be read to mean that the coach committed perjury 0 Coach Milkovich may have been libeled when an article was written that he encouraged fans to attack the wresting opponents o Testified that he had no part in that 0 Column said he taught students if they get into a jam lie their way out Florida Star v BJF matters of public importance 0 SC said the first amendments protects publication of lawfully acquired truthful info about a matter of public importance unless prohibiting publication will further a state interest of higher importance 0 SC reversed decision against a newspaper for publishing the full name of a rape victim 0 Reported acquired name of victim from a government news release prepared by the police 0 BJF claimed that publication of her named caused her emotional distress 0 Received calls from person saying he d be back 0 Compelled to move to new address 0 Jury awarded her compensatory and punitive damages for paper39s violation I SC reversed this decision 0 SC said the paper acquired name lawfully from sheriff s department Cox Broadcasting Corp v Cohn Public Domain 0 SC established First Amendment protection for the media to report information from official records available in open court 0 Rape and murder of girl victims name wasn t published 0 Reporter learned of the victim by reading indictments provided by court clerk o Victim s father sued claiming privacy was invaded by broadcasting his daughter s name 0 SC said first amendment does not permit a privacy suit against the media for diseminatiing private info contained in public records that are part of court proceedings Galella v Onassis Harassment and Stalking o Photog galella bumped the parents of Kennedy s children schoolmates blocked passages blinded ppl with flashes impersonated family employees spied with telephone lenses while trying to take pictures of Onassis 0 Court ruled galella was liable for assault battery harassment and infliction of emotional distress 0 Shows when overzealous reporting becomes intrusive Bartnicki v Vopper Intrusion in private places 0 SC ruled that radio talk show host Vopper cannot be punished under federal and state statues for broadcasting an illegally recorded cell phone convo btw 2 ppl in negotiations over teacher s raises 0 The head of a local teacher s union suggested blowing off the porches of school board members if they failed to offer raises 0 Tape was left anonymously in the mailbox and passed to the station 0 SC ruled that media s dissimination of lawfully acquired materual about an issue of public importance outweighs the legislatures interest in discouraging unlawful interceptions and protecting the privacy of wire and electronic convos 0 Subject of the conversation recorded was an issue of public importance Florida Publishing Co v Fletcher Trespass 0 Court ruled that photog did not trespass when he went with firefighters into a private home that killed a girl 0 Girl s mother sued for trespass 0 SC riled that photog didn t trespass bc he was invited into the home by public officials 0 Limited to catastrophes o Journalists following public officials into places was common practice 0 Law recognizes a priviledge for the entries in custom and usage Cantrell v Forest City Publishing Co Fictionalization 0 Reporter wrote story about Cantrell and her family after husband died in Silver Bridge crash into Ohio River 0 Article said that reporter had interview Cantrell when he really hadn t o Sued for invasion of privacy because she was cast in a false light thru falsifications that implied she was interviewed 0 SC ruled that she was placed in a false slight thru misrepresentations false implication that reporter interviewed her during his visit Time Inc v Hill Fictionalization 0 Hill family was portrayed positively but falsely when three convicts entered their home Zacchi O Hustle 0 Braun 0 Play was written about it saying that Hill family was abused by convicts when really they weren t SC recognized falselight but ruled that plantiffs must prove NYT actual malice if they are involved in a newsworthy issue ni v ScrippsHoward Broadcasting Appropriation SC ruled that first amendment didn t bar a human cannonball from pursuing a publicity suit against a tv station that broadcasted his entire act during a news program Station put his act on the news even though Zacchini asked them not to Sued because the broadcast had appropriated his professional property without his consent SC said that First Amendment didn t provide a priviledge to broadcast someone s entire act 0 Appropriated his entire professional property SC said broadcasting entire act posed a threat to the economic value of the performance bc viewers might not pay to see him in person Case is limited by its unusual facts r v Falwell Emotional Distress Falwell said that Hustler magazine engaged in outrageous conduct by publishing an ad satirizing the advertisement for Campari Liqeur In the Hustler parody falwell s first time is a sexual encounter with his mom in an outhouse 0 Mom is seen as a drunk immoral woman and Falwell is seen as a hypocrite and drunk Falwell sued for libel invasion of privacy and intentional infliction of emotional distress SC said that Hustler ad was gross and repugnant in eyes of most SC said caricature of Faldwell contained constitutionally protected ideas and opinions about a public figure Ad did not contain actual facts or actual events Faldwell participated in Ad contained statements about Faldwell that were so outrageous that they could not be true The outrageousness of the parody placed it in realm of ideas and opinion SC said cartoon was a tasteless version of political cartoons Said that holding Hustler s publisher liable for outrageous public opinions would unconstitutionally punish him for bad motives Said public figures cannot sue the media for intentional infliction that they are the subkect of a false statement of fact published with NYT actual malice v Soldier of Fortune Physical Harm Held Soldier of Fortune magazine liable for negligently publishing an ad that caused a contract killing Magazine has legal duty to refrain from publishing ads that subject the public to a clearly identifiable unreasonable risk of harm Killer was hired after placing a Gun for Hire ad in the personal services section of the magazine 0 Soldier of Fortune held liable because the ad presented a grave risk that outweighed the burden of requiring the publisher to forsee the likely consequences of the ad 0 Court said its holding didn t violate the First Amendment bc publishers weren t subjected to check the danger and legality of each ad 0 Said publisher could be held liable only if an advertisement on its face would alert a publisher to the unreasonable risk Harper amp Row Publishers Inc v Nation Enterprises Inc Rights to distribution of copyright 0 SC ruled that Nation violated the copyright held by Harper and Row by publishing several stolen excerpts of Ford s memoirs that were to be published in Time magazine 0 Time mag had exclusive contract with Harper to publish before the book was distributed 0 Publication of an author s expression before he has authorized the dissimination infringes the author s right to decide when and whether it will be made public Campbell v AcuffRose Music Inc Parodys 0 SC ruled that 2Live Crew s parody of Orbison s Pretty Woman could be transformative not to violate the copyright held by AcuffRose o Parody may be a fair use even though it has commercial purpose and copies the heart of the original work 0 2Live Crew s parody dearts markedly from lyrics creating its own comment and criticism of the song 0 SC said that parody wouldn t interfere with potential market for Pretty Woman BurrowGiles Lithographic Co v Sarony Copyrightable Works 0 SC ruled that a photograph of playwright Wilde sitting in a Victorian interior with a book in his hand was an original work of authorship o Sarony could bar unauthorized copying of his photograph 0 SC rejected the argument that a photocopy is just a reproduction requiring no originality and no authorship o Sarony gave visible form to his original mental conception by posing Wilde selecting and arranging the costume and draparies arranging and disposing the light 0 Photographers may not protect the idea of taking a picture or the individual elements of the picture under copyright law 0 The copyright owner owns the copyright in the composition placement of elements within the whole Feist Publications Inc v Telephone Services Company Copyrightable works 0 SC ruled that the publisher of a reginal telephone directory did not violate the copyright of a smaller local directory when the publisher of the regional directory borrowed names and addresses from the local book 0 Publisher of the larger directory took facts whose compilation and arrangement weren t creative 0 SC didn t see originality in alphabetized lists and refused to recognize a copyright based on time money and effort the telephone company expended to create the book 0 Constitution requires originality as a condition for successful copyright claims Community for Creative NonViolence v Reid Works made for Hire 0 SC said that independent contractors are not considered employees unless they meet several criteria of employment 0 Ruled that Reid a sculptor working on commission was not an employee because he was a skilled professional 0 Supplied own tools worked in his own studio received no benefits 0 After Reid freelance photogs and writers weren t considered employees New York Times Company v Tasini Rights of distribution of copyright 0 SC ruled that the publishers infringe freelancers copyright if they make available freelancers printed stories and photos in electronic databases without getting the freelancers permission or paying them for the electronic distribution 0 SC rejected publishers argument that distributing articles electronically is similar to preserving a publication or creating a revision 0 SC ruled that publishers electronic distribution of individual articles from databases created new works Sony Corporation of America v Universal City Studios Personal Entertainment 0 SC ruled that homeowners can record complete copyrighted tv shows off the air for their personal noncommercial use 0 Case is known as betamax decision 0 Home recordings for the purpose of quottime shifting is fair use 0 Home copiers didn t have commercial or profitmaking purpose What are the sources of law 0 Common law 0 How judges in US decide cases 0 Look at what was decided before and base decision on that o Aka judge made law 0 Most important in early development of US 0 Grew out of English common law 0 Promotes stability and flexibility 0 Equity 0 Fairness Whats a fair decision in this case Allows court to take fairjust actions Allow preventative action Developed in same court the decides common law Don t use juries 0 Significant in communication law 0 Statues 0 Written by legislative bodies 0 Govern social behavior 0 Process OOOOO Provide oversight for acceptable behavior Lawmakers study a complicated issue and write a law People can make suggestions Executive branch interprets statsues through administrative rules 0 Judges explain them 0 Constitutional laws Supreme source of law in the US Direct reflection of government wanted by people Supersedes anything Limits power of government Ex Bill of Rights and First Amendments Federal constitution ultimate authority Supreme court last word on constituition I Only US Supreme Court can settle disputes btw federal and state constitutions 0 US constitution hard to amend I Proposed 23 of member I Ratified by 34 of state legistature 0 Administrative rules 0 Make rules how organization under them will act 0 Get fined if break these 0 Developed by FCC broadcast cable satellite phone or FTC adver and telemarketing o Supposed to be independent but highly regulated I President influences agency by naming commissioners I Executive branch reviews choices I Congress tells what industries they can regulate 0 Controls budget and closely monitors agencies 0 Congress creates agencies to supervise 0 Executive Action 0 Make laws 0 President I Appoints regulators issues executive orders I Authority to administer statuses I Nominate judges to federal courts I Nominates members of agencies 0000000 What is an Article III judge 0 Federal judge Who are the current US Supreme Courtjustices Who is the chiefjustice o Breyer Thomas Ginsburg Alito Kennedy Stevens 0 O O O O o Scalia o Souter o Robertsjr Chiefjustice What are terms of federal judges How are they appointed What are their requirements for remaining on the job How do they end their job tenure 0 Appointed by president 9 justices Only removed by impeachment Approved by senate Life tenure 0 Cannot change with different presidents o Cuts down on political influence No reduction in salary 0 Cannot punish them because could bribe them and we d have a corrupt system How does a case begin and proceed through the federal court system What is the appellate process 1 US District Court 92 0 Ct of original jurisdiction 0 Cases begin here 0 Only one with jury 0 Major basis of jurisdiction 0 Every state has one some have more than one 2 US District Courts of Appeals 0 Divided into 13 circuits 0 If lose case have at least 1 appeal 0 Ensure trial courts used proper procedures and applied laws correctly 0 Decide cases on briefs 0 Also hears short oral arguments from each side s attornies o If disagree with ruling can overturnreverse decision and send back to trial court for new trial 0 Cases heard by panel of 3 judges 0 Important cases hear en banc o All judges o Hears appeals from 0 Lower federal courts 0 Federal administrative agencies 0 LA circuit 5 in New Orleans 3 US Supreme Court 0 Hears cases and controversies 0 Exercise original and appellate juristdiction o 9 justices 0 Appointed by president 0 Approved by the senate 0 Appointed for life 0 Highest court in the land 0 More conservative o Interprets constitution narrowly o Favor states rights 0 Support individual property rights Interprets constitution Accepts cases by writ of certicrari 9 members Appellate jurisdiction From video 0 Have all these people wanting their attention via appeals 0 Select ones that have biggest impact on nation 0 Moot no impact no reason to review What is the process by which a case is heard by the US Supreme Court 0 Attorney files written argument writ of certiorari to review decision 4 justices must vote yes to put case on their calendar Court normally 99 of petitions with no explanations lf accept a case review is same as the other courts Attorney files brief 0 Present facts issues and review of lower courts Listen to oral arguments and ask questions Justices meet to decide and produce a draft Draft is then sent around for editing and comments Justices ofren write their own concurring opinions to explain their vote Sometimes drafts submitted aren t favored by a 5 majority vote 0 Draft with most support becomes the opinion of the court 0 Per certain 0 Opinion of the court rather than an opinion attributed to any one justice 0 Can review constitutionality of all legislation 0 Can invalidate act of congress that violates constitution What types of motions and pleadings are available in civil court litigation 0 Summons 0 Notice to appear in court 0 Summary judgement o Terminates suit in early stages ifjudge thinks they can settle outside 0 Discovery 0 Information gathering process 0 lnterrogatories 0 During discovery written s prepared by lawers o Depositions 0 Ask questions under oath o Subpoena o Requires someone to testify Explain how each pleading and motion works in the civil court process 0 Planti o Claiming damages on defendant 0 Defendant o Tort o Injury to someone s physical body or reputation emotional distress or taking their property 0 Go to civil court Lawyer files a complaint 0 Brief summary of what happened and what they want 0 Must be factual and detailed o Allegations and plea for damagesinjunction Answer 0 When defendant gets a complaint must file answer o If don t have this wave right to defend yourself Default judgement 0 Didn t do your job and take necessary steps lazy o What happens if you don t answer 0 Wave right to defend yourself Motion to dismiss 0 When claims are ridiculous against you 0 Written or oral appeal to court for the judge to do something in your favor Discovery 0 Time where each party can request info from the other Standard of proof 0 Level of evidence required to prove the case 0 Amount of evidence needed to prove that you should win the case 0 Preponderance of evidence I Lower than beyond reasonable doubt Burden of proof 0 Plantiff has task of proving you re at fault Affadavits interrogatories admissions and depositions o Affa sworn statements 0 lnterr questions submitted to other party that must be answer 0 Admiss plantiff sends this to admit something 0 Depo most common tool trial without being in court get info to still go to trial trying to get you to mess up both side s lawyers are present Motion for summary judgement o Happens after discovery 0 Says shouldn t go to trial 0 Says no genuine issue of material fact Trial 0 Opening I Summary of what jury s going to hear I Both sides give this 0 Direct I Each party calls own Witness 0 Cross I Opposite attorney asks them questions 0 Closing I Summarizes trial Motion for directed verdict 0 Ask judge to make decision before being submitted to jury 0 Jury chargedeliberations o Gives jury instructions 0 Sometimes tells them not to watch tv or read paper about this 0 Verdict 0 Motion foerOV 0 Non onstant verdico o No way jury could have come up with this 0 judgement not withstanding the law 0 Motion for a new trial What is the jurisdiction of federal district courts What types of claims can a federal district court hear 0 Constitution and laws of the US federal questions 0 Usually first amendments also 4th and 6 laws of US Ambassadors and other public ministers and councels Cases of Admiralty and Maritimejurisdictions 0 Law of the sea Controversies where US is a party US vs Controversies btw 2 or more states Controversies btw citizens of the same state claiming land of a different state Controversies of citizens of different states 0 Diversity jurisdiction must claim at least 75000 Controversies btw state or the citizens thereof and foreign states citizens or subjects State supreme courts may get direct appeals to US supreme court 0 Tort law harm to person physical or mental CHAPTER 2 What is the clear and present danger test 0 Replaced badtendency test 0 Protects much more speech 0 First stated byjustice Wendell Holmes in Schenck v US 0 Expression should be punished only when words are used to create a clear and present danger What is vagueness and overbreadth o Vagueness o Restricts freedom of expression 0 Law written so unclearly that people have to guess at its meaning and differ as to its application 0 lnhibits speech by making speakers cautious o Overbreadth 0 Clear about what it prohibits but prohibits too much What are the different theories of the purpose behind the First Amendment Know each theory along with its proponent o Marketplace of ideas 0 Attainment of truth OO 00 OO O Rational decisions emerge from considering all facts and arguments People in marketplace of ideas seek the most original truthful or useful info Good ideas prevail in free market Milton and Mills I Started off with Socrates Milton wanted a divorce and wrote a pamphlet without permission I Gets in trouble and writes another one I Says everyone should be able to speak because it allows us to get the truth Mills agreed but said truth doesn t win all the time Economic free market I Everyone can get in and consumers choose what they want Criticism I Ppl might not choose good over bad decisions I Silences free speech of women I Some people are blocked from entering but internet opens possibilities I Ppl mught not make rational decisions 0 Self Governance 0 O O 0000 0 Freedom of expression is valued primarily for its contribution to governance Meiklejohn Government shouldn t restrain political speech Purpose of the first amendment is to aid citizen s understanding of issues of common life Nothing should be kept from the people People need to govern themselves and need as much info as possible Ultimate way to express yourself free speech Expanded it to political social or artistic speech lncludes making decisions for yourself 0 Fou rth Estate 0 O 0 000 O Blasi Check on government power First amendment is most valuable during periods when the pressure on democratic institutions is intense that the government is tempted to suppress free expression Press can expose political corruption if it scrutinizes government operations 3 houses in England I Said there s a 4th house reporters 3 branches in US government I Perform check and balance Press acts as a check on those 3 branches Checking value of 1st amendment to check on government Press watchdog for people make sure government is working Press check for big business 0 Safety Value 0 Allows critics to participate in change o Aloowed to express themselves 0 Worthless ideas can be rejected with little threat to stability of society 0 Freedom of expression promotes stability flexibility tradition and change Change in society with stability Emerson If there is barriers to enter not totally blocked out lSt amendment safety value 0 People have opportunity to express themselves 0 SelfFufillment o Tribe Enriches ones life Freedom of expression is a fundamental good Necessary to protect the integrity of individual People fufill themselves by speaking a writing I Also serve the social and political values of free speech 0 1st Amendment self fulfills I Can express however you want 0 Personal autonomy I Can say whatever whenever at any time I Become full person I Can sayprint whatever we want or think 0 O O O O O O 0 How does the First Amendment apply to adults 0 Right to speak and publish 0 Can converse anywhere 0 Can participate in forms of expression I Marches demonstrating 0 Anonymous speech 0 Anyone with money and access can publish and distribute 0 Associate 0 Form groups 0 Assembly speech petition 0 Band together to advocate political change or just worship God 0 Receive information o Interchange of ideas 0 Solicit funds 0 Contribute money and solict funds to further a cause 0 Doesn t include begging o No compelled speech 0 Right to speak and right to refrain from speaking 0 Government cant compel them to speak How does the First Amendment apply differently in high schools In colleges 0 Rights of HS students are weak 0 Cant deliver speech containing offensive or sexual within school context 0 Punish offcampus expression that disrupts education at school 0 Students have rights inside and outside school 0 College students need more protection that HS What does the First Amendment actually say 0 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 Know the hierarchy of First Amendment values 0 Most favored speech political and social content 0 Regulation subjected to strict scrutiny 0 Less protected advertising and nonobscene sexual expression 0 Regulation subjected to more relaxed scrutiny 0 Not protected by the constitiution false advertising fraud obscenity and fighting words 0 Political and Social Expression 0 Most valued Most protected Contributes to individual fulfillment and democratic government Political social religious and cultural issues Includes debates about election labor race health agriculture religion and education 0 Can be printed in newspaper magazines poems posters 0 Can be oral like speeches lectures films and broadcasts 0 Commercial and Sexual Expression 0 Less protected than political and social expression 0 Commercial advertisng and nonobscene sexual expression 0 Less valuable than political speech 0 Commerical advertising more heavily regulated bc advertising is hardier and withstand more regulation 0 Advertising more easily verified o Relaxed scrutiny is applied 0 Expression is less protected if broadcasted I Bc it intrudes into the home 0 Fighting Words 0 Not protected by the constitution 0 Hate speech I Written or spolen words that insult and degrade groups 0 Only words that amount to a slap in the face are beyond constitutional protection 0 By their very utterance inflict injury or tend to incite an immediate breach of peace 0 Direct tendency to cause violence 0 Threats o Unprotected 0 Only true threats can be punished o Context is important 0 O O O What principle applies the First Amendment to laws enacted by the states Explain how 0 Fourteenth Amendment 0 Authority of American federal courts to review the constitutionality of state laws restricting speech 0 Intended to prohibit the states from violating citizens rights protected by Bill of Rights 0 Prohibits any state from enforcing a law that is I Abridge the privileges or immunities of citizens in the US I Deprive any person of life liberty or property without due process of the law I Deny any person equal protection by the law How are contentbased laws different than content neutral laws 0 Content neutral Constitution is more tolerant towards this Concerned with how you are speaking Such as restrictions on the times and routes of parades Slightly infringe on freedom of expression but aren t aimed at regulating the content of the speaker39s expression only the time place and manner of expression 0 Contentbased regulations 0 Restrict a fundamental right 0 Subjected to strict scrutiny to prevent government from favoring or discriminating against a subject or view point 0 Laws prohibit certain type of speech 0 O O 0 When is the strict scrutiny standard used What is the strict scrutiny test 0 Where regulations restrict the content of political social and artistic expressions 0 Ensures regulations are 0 Justified by compelling government interest 0 Narrowly drawn to impose the minimum abridgment of free expression 0 Apply them to content regulations 0 Prove to me this regulation isn t unconstitutional What is the rational basis test 0 Requires that the government action be related to a legitimate government interest 0 Applies to federal national and local government 0 Lowest level of scrutiny applied by courts deciding constitutional issues through judicial review 0 Always has a ruling favorable to the government Which tests do courts apply in First Amendment cases 0 Most often balancing test 0 Ad hoc balancing gives judges flexibility but makes first amendment protections unpredictable 0 Clear and present danger test provides more protection for freedom of expression when applied literally o Definitional balancing brings more uniform standards to First Amendment CHAPTER 3 What is a contentneutral regulation 0 Subject to less rigorous ad hoc balancing process 0 The government has adopted to regulation to control something other than message conveyed by the expressive activites 0 Not be based on government hostility to particular messages What is the constitutional test to analyze a time place or manner restriction 0 Designed for regulations targeting expressive activities 0 Such as restriction on where picketing may take place 0 Courts assess whether regulation is contentneutral o Courts assess whether the regulation is narrowly tailored to serve significant gov interest 0 Asks whether the regulation leaves open alternative channels for communication What is a prior restraint Are there any circumstances that would permit a prior restraint 0 Direct curb on publication 0 Bring a wider range of expression under government scrutiny 0 When prior restraint is permitted the public has no opportunity to judge the worth of suppressed ideas or to offer criticism 0 Main purpose of the guarantee of freedom of expression is to prevent restraints on publications 0 Permissible in wartime to bar expression stopping military recruiting or announcing the location of troops o Acceptable on obscene expression and on incitement to violence to overthrow government What are injunctions How are they used in prior restraint cases 0 Halts obscenity false advertising and fraud Less likely to issue a prior restraint on political speech that would harm Court order anyone can get Like a restraining order 0 O O o Stops someone from doing something What is postpublication punishment How does it differ from prior restraint 0 Prior restraints on speech and publication are most serious and least tolerable infringement on First Amendment rights 0 Courts will strictly scrutinize any proposal to restrict dissimination of news or information 0 Prior restraints bring a wider range of expression under government scrutiny 0 Prior restraints could let the government require all publications be censored by a government official 0 Prior restraints limit the publics knowledge of ideas and ability to criticize facts 0 Prior restraints injunctions or licensings 0 Post publication punishment 0 More common method for curbing harmful expression 0 Punishing someone after a publication has come out What are prepublication agreements Do they violate the First Amendment rights of government employees 0 Government contract or restrictive prepublication agreements 0 Government employees speech may be restricted o Prohibits employees from revealing confidential business information giving info that would jeapordize national security reveal business secrets or invade privacy 0 Federal employees sign nondisclosure forms prohibiting disclosure of classified information 0 Employees that divulge this info can be fired Does military security review of news media work violate the First Amendment 0 Ensures that journalists comply with ground rules 0 Security review on all press coverage or explain what cancant be reported on Fearful they will give info to the enemy Used to control military s image System of security review has never been challenged Press prefers no security review but accept it as a condition of gaining access to info What must government be concerned about when it comes to licensing 0 When government has control of what may be communicated in public forums motion pictures and other media 0 Licensing of broadcasting is necessary to prevent interference among broadcasters What is discriminatory taxation Are news media protected from it o Called tax on knowledge 0 Taxing publications and advertisements 0 Tax on press considered prior restraint bc hinders publisher s ability to disseminate info and for citizens to receive it o Ruled that tax on media is unconstitutional C HAPTE R 4 What is libel 0 Written defamation What What What Publication that tends to damage a person or corporation s reputation or expose to public hatred ridicule or insure ppl in professional careers More harmful than slander bc its recorded Written defamation causes more harm to person s reputation 0 Last longer and circulated more widely are the elements of a libel claim Falsity Identification 0 You must prove they39re talking about you Publication 0 Prove it made it to at lease one other person 0 Should prove publication was widespread so reputation was harmed Defamatory meaning 0 Defamatory language Negative connotation Negligence Damages O are the eight especially sensitive categories of libel Have a disease 0 STD swineflu etc Serious sexual misconduct o Rapist child abuser lmpugn another39s honesty or integrity 0 Calling someone a cheater or fraud Committing a crime or being arrested 0 Calling someone a theif Why use words like accused ofquot or allegedly Allege racial ethnic or religious bigotry o Racist lmpuning someone s financial wealth or credit worthiness o Saying someone is bankrupt Associating with criminals Lack of ability or incompetence in their profession o Psychologist crazy etc 0 are the defenses to a libel Truth 0 What statement you made was true Substantial truth 0 Relies on impression or overall gist of a statement Absolute priviledge 0 Protect public officials Cant be prosecuted for libel lncludes official records made during congress judicial documents statements made during official proceedings Qualified priviledge 0 Person who reports on privledge O O I Whoever summarizes or writes down what was said I Has to be accurate 0 Report on statements made in court or proceedings 0 Neutral reportage o Protects when writing on issues that is unvaforable to another person 0 Must be newsworthy get info from reliable source report fair and accurately and statement must be about public officials 0 Protection for opinion 0 Look at social context of words 0 Don t present opinion as fact 0 Should make it obvious that it is an opinion 0 Statue of limitation o Btw 13 years from date of publication 0 Limit of time to sue for libel o If someone reprints can get them but not original 0 Libel ProofPlantiff o Ppl s reputations are so bad what you say doesn t effect them 0 EX RKely is a pedophile o Broadcaster s priviledge for political ads 0 Consent 0 Proof that someone knew about it or consented to you to have that info published 0 Wire service 0 Rely because cant be everywhere all at once o If AP has libel info and you publish story cannot be punished I Relying on reliable source What are the types of damages 0 Presumed damages 0 Loss of reputation that a defamation is assumed to cause o Compensatory damages 0 Consider degree of fault number of ppl who read or heard defamation seriousness degree of injury caused and reputation of persons 0 Actual I Awards for proven loss of good name shame humiliation and stress I Injury to reputation must be proved 0 Special I Out of pocket expenses or other lost revenues as a result of defamation I Require proof of outofpocket loss I Monetary loss is only kind of injury used to prove special 0 Punitive 0 About punishing speaker for things they have said 0 Punish publication for defamation Can an editorial be libelous 0 Some words are defamatory by themselves 0 Meaning of a word must be considered in context of complete editorial 0 Must be considered in social context 0 What is libelous could change with circumstances 0 Isolated words taken out of context cant be defamatory What is group libel 0 Large groups cannot sue successfully for libel over comments made about their group 0 People belonging to groups of more than 100 members cannot claim defamatory comments about the group as a while 0 Individuals of a group that is smaller than 100 may be able to establish they were indetified and therefore can sue o The smaller the group the more likely it is that every individual in it might be able to sue Is it possible to defame a corporation or a product 0 Business can sue for defamatory false stories about business practices 0 Nonprofit organizations can sue for language that damages their ability to accept donations o Associations can sue for false stories that would damage their ability to attact members conduct business or obtain financial support 0 Product disparagement or trade libel o Defames quality or usefulness of a commerical product 0 Compensate for loss of sales 0 Hard to win these suits 0 Must prove burden of proof but prove financial law and malice What must a plaintiff prove in a defamation case 0 Burden of proof 0 Words or phrases that expose a person to hatred ridicule or contempt o Judges determine whether a message is capable of defamatory meaning 0 Jury determins whethere that message defamed the person who is suing 0 Must prove that defamatory language is about them personally 0 Must prove that someone besides them got the publication 0 Must prove fault Who can sue for libel Persons Corporations Governments 0 Public officials 0 Public figures 0 Involuntary o Allpurpose 0 Limited purpose What are the legal limits of liability for a privateperson libel claim What standard of liability is not permitted and under what circumstances 0 No one person can sue for damage to the reputation of another 0 Right to sue for damages dies with each individual 0 No friend or relative can sue on behalf of a dead person o A relative can continue a libel suit filed by a person who dies during the process 0 Some plantiffs are libel proof bc their reputations are so bad that no words can affect them negatively What are the standards of liability for libel of public officials What is the test to determine whether someone is a public official 0 Present and former government office holders elected or appointed 0 Supervisors in government 0 Those who have substantial control over the conduct of government affairs 0 Have access to media and get coverage 0 Easily correct false information o 3 types of public officials o Involuntary I Something happens to you 0 All purpose I Celebrities 0 Limited purpose I Thrust yourself out there I Public controversy I Influence outcome I Must prove actual malic if something was said about you What is actual malice 0 Knowledge that the information was false 0 Reckless disregard of whether the report was false or not What devices help to mitigate damages in a libel suit 0 Retraction o Apologize if wrote libel information o Correctionclarifying o Clarify information you wrote 0 Reliance on a usually reliable source 0 Who are you getting your info from Are punitive damages ever permitted against a media defendant in a libel suit Under what circumstances 0 Punitive damages are intended to punish a publication for defamation rather than to compensate for damages 0 Some critics say punitive damage awards lead journalists to censor themselves 0 Supreme court requires that all livel plantiffs prove actual malice for punitive damage Some states do not permit punitive damages Other states require plantiff to prove actual malice but that the media intended to harm their reputation What is the difference between an allpurpose public figure and a limited purpose public figure o All purpose 0 Occupy positions of pervasive power and influence They are deemed public figures for all purposes Special prominence in society Exercise general power and influence and those who occupy a position of continuing news value 0 Must prove actual malice about their private and public lives 000 0 Limited 0 lnject themselves into public controversy to affect its outcome 0 Have to prove actual malice only for defamation directly connected to their acts 0 Remain private persons for libelous statements about their private lives 0 Only classified as one if I Alleged defamation involves public controversy I Person suing has voluntarily participated in discussion of the controversy I Person suing has tried to affect outcome of controversy I All 3 criteria must be met in order to be considered one What reasons did the US Supreme Court not extend the actual malice rule to private persons 0 Gertz court case 0 Actual malice 0 Knowledge of falsity or reckless disregard for the truth 0 For private person state has more interest to protect them bc public ppl can correct false statements more easily than a private person How can a media defendant mitigate the damage for a libel award o If they respond to informal complaints promptly and courteoust 0 Printing retractions What is a journalists privilege and how does it relate to libel 0 Qualified priviledge protects journalists who report defamatory comments in official proceedings as long as their stories are fair and accurate People depend on journalists to get their information Reporter s qualified priviledge is few protections for the publication of false defamatory statements Priviledge only protects reporters of official proceedings Some states reporters can report unofficial but open meetings CHAPTER 5 Privacy and Personal Security How has the right to privacy been defined 0 Right of a person to be free from unwarranted publicity 0 Right to be left alone Where did the right to privacy come from Is it expressed in the Constitution 0 1890 Harvard Law Review 0 By Warren and Brandeis 0 Large city news writing about scandals of rich and famous 0 Warren rich person 0 Photog invaded daughter s wedding 0 Wrote article saying court needs to recognize people need to be left alone 0 Abigail Wilkerson 0 Face on flour bag to promote it o Courts said she had no recourse 0 Should allow people some privacy 2 years later GA state court recognized it I GA artists faced use for insurance company 0 Not specifically expressed in constitution but implied I lmplied in the first amendment and penumbras of the constitution I 15 3rd 4 and 9th Amendments What are the four major categories of privacy actions 0 Appropriation 0 Using someone s name without consent for promotions o Unauthorized commercial use of authors name or likeness I Likeness of the voice or tv characters 0 Commercial using name or photo in ad or testimonial o Protects person from shame and humiliation o Protects a person s property right 0 lntrusion o Trespassing looking though window and taking pictures 0 Public disclosure 0 Finding out private information and publishing it 0 Public disclosure of private facts 0 A publication that is highly offensive to a reasonable person and not legitimate concern to public 0 Portrayl in false light 0 Similar to libel and appropriation o Dissiminating highly offensive false publicity about someone with knowledge of or with reckless disregard 0 Can be positive What defenses can the media use in lawsuits over publication of private facts 0 Information already in public domain 0 Information from official records 1st Amendment Matters of public importance consent Newsworthiness 0 Public occurrences 0 Strange and unusual events What must a plaintiff prove in a public disclosure of private facts suit 0 Must establish that the information publicized is in fact private and the dissimination of that information is highly offensive 0 Media held responsible for information about illnesses mental disorders intimate medical procedures and hospitalization without consent of the subject 0 Offensiveness is a jury quesiton Where do people generally have the greatest expectation of privacy The least 0 The more public the surroundings the less expectation of privacy 0 Least places where bystander can see what s going on 0 Most intrusion into private places 0 Peep snoop easedrop peering in someone s window open someone s mail or record phone convos Which constitutional provision is related to intrusion 0 4th Amendment government search and seizure ls recording a conversation without the knowledge of one of the parties always legal 0 Bugging and wiretapping are prohibited 0 Secret recording by on party to a conversation is permitted by federal statue and state statues in some states 0 Participant monitoring violates federal law if done to commit a crime or tort What must a plaintiff prove in a falselight privacy case 0 Seeking recompense for psychic harms of mental distress and humiliation o Prove offending material is widely dissiminated What are the two broad categories that constitute highly offensive publications 0 Distortion 0 Most common falselight claim against the media 0 Media omits information or uses it out of context 0 Fictionalization 0 Addition of fictional dialogue or characters to what are otherwise essentially factual works 0 Doesn t have to be negative to be offensive What defenses may the media use in falselight cases 0 Defendant is not identified by publication 0 Publication is true 0 Plantiff must prove fault actual malice ln falselight cases does it matter that the plaintiff is a public figure Does it matter in appropriation cases 0 Does not matter in falselight cases 0 Celebrities lose right to publicity What does a plaintiff have to prove in an appropriation case 0 To publish peoples names or pictures in commercial contexts without permission What defenses may the media use in an appropriation cases 0 First Amendment 0 Dissiminate information for public interest 0 Newsworthiness o Consent o Communicators have written consent to use person s name or picture for commercial purposes Who usually wins an emotionaldistress lawsuit Why 0 The media 0 Whether publication or broadcast constitutes outrageousness is subjective judgement o Courts haven t found them legally liable for intentional infliction of emotional distress 0 Some courts have let individuals sue for aggressive media practices What must a public figure or official prove to win an emotionaldistress case 0 Prove they are subject of a false statement of fact published with actual malice 0 Unable to sue for satire or criticism unless it contains false fact and is published with actual malice What constitutes a foreseeable harm in a media negligence case 0 Serious risks were too obvious for media to ignore 0 Murder or publishing crime victim s names 0 Encouraging reckless behavior in a commercial promotion 0 Subjecting women to threats from an abductor who is known to be at large What are the two types of emotional distress o Intentional infliction 0 When someones conduct is so outrageous in character and so extreme that goes beyond all bounds of decency and intolerable in a civilized community 0 Called outrage o Negligent infliction o Breach a duty of care owed to the plantiff and that breach causes Injury 0 Media are negligent whenthey fail to forsee that publications and programs containing violence and antisocial behavior may inspire readers or viewers to cause harm to themselves and others What does a plaintiff have to show to win an emotional distress lawsuit 0 Emotional distress must be severe o Intensity duration and physical manifestation of the distress How did the Hustler case change the standard of emotional distress for public figures 0 Supreme court ruled public figures may not successfully sue the media for intention infliction without proving that they are the subject of a false statement of fact published with actual malice 0 Public officials cant sue for satire or criticism unless it contails a false fact and published with actual malice 0 Did rule outrageous language of parody to cause him emotional distress 0 Didn t contain facts avout him or actual events 0 Statements about him that were so outrageous that they couldn t be true Why did the Court of Appeals in the Braun case rule against Soldier of Fortune magazine on the negligence issue 0 Liable for negligently publishing an ad that resulted in a contract killing 0 Magazine has a legal duty to refrain from publishing ads that subject the public to a clearly identifiable unreasonable risk of harm Publishing the ad resulted in killing of a man Violated public duty not to publish a clear risk of harm that lead to death Balancing the risk of a serious harm against the costs of guarding against it Held liable because the ad presented grave risk that outweighed the burden of requiring the publisher to forsee the likely consequences of the ad 0 Publisher held liable if advertisement on its face would alert a publisher of risk 0 Emphasized term gun for hire 0 Described savage as pro hitman 0 Keep assignments confidential and private 0 Listed jobs involving use of guns as special skills 0 Would consider all jobs What is the liability of the media in other areas where the media or media events cause harm to people 0 Media are rarely liable for physical harm that media users inflict on themselves or others 0 Violent acts on tv don t incite people to harm themselves 0 Media have no duty to forsee harms to a general audience 0 Burden of preventing violence or financial hardship too inhibiting 0 Media are liable for encouraging reckless behavior in a commercial promotion 0 Liable for subjecting a woman to threats from an abductor known to be at large CHAPTER 6 Intellectual Property What is a patent What is a trademark What is a service mark What is a copyright 0 Patent 0 Mostly scientific o Inventions genetic discoveries o Trademark o Distinctive mark of authenticity word symbol phrase through which the product of manufactures is distinguishable from others 10 year term Renewable indefinitely Must be distinctive and recognizable from other marks Way company identifies itself 0 Reduces time and effort consumers expend when buying products 0 Service mark 0 Symbol that is used in sales or advertising to identify services instead of products 0 Titles character names and other distinctive features of radio and tv OOOO programs 0 Reduce time and effort consumers expend to buy products 0 Copyright 0 A right granted to the author or creator of certain literary works where that person has exclusive priviledge of 0 Term life of author plus 70 years What part of the Constitution gives Congress the authority to make copyright law 0 Article 1 section 0 Gives congress the authority to promote progress of science and art by securing for limited times authors and inventors the exclusive right to their works and discoveries 0 Grants creative people exclusive control over their intellectual expression for a fixed period 0 Copyright benefits society by spurring creative expression 0 Also benefits authors by allowing them to control and profit from their creative expression When was the last major revision of the Copyright Act 0 1976 Copyright Act 0 Made it easier for authors to control when and how their works are used by others 0 Made copyright law more uniform o Technological advances have forced congress to change copyright act Who does copyright protection extend to 0 Work must be created independently with a modicum of intellectual effort 0 Original works of authorship fixed in any tangible medium of expression 0 Slight amount of originality confers protection under the law 0 Neither artist nor merit required I Doesn t have to be something ppl haven t seen before 0 Utilitarian design aren t copyrightable ideas aren t copyrightable I ltems used to produce something else How can the quotfixedquot requirement be met 0 Fixed in a tangible expression as soon as it is created or recorded What are the 8 types of works of authorship protected in the copyright law 0 Literary work 0 Software is considered under this 0 Video game a story 0 Musical works including accompanying words 0 Songs lyrics 0 Dramatic works including accompanying music 0 Plays and songs that go with them 0 Pantomines and choreographic works 0 When written down or filmed its copyrighted o Pictoral graphic and sculptural work 0 Includes graphic novels poetry museum stuff comic books 0 Motion pictures and audiovisual works 0 Sound recordings 0 Architectural works 0 Blueprints for them What are the 6 exclusive rights of copyright owners 0 Reproduction o Largest 0 Sampling reproduce song of another making Xerox copies 0 Preperation of derivative works 0 Adaption of original work 0 Public distribution 0 Napster ppl uploading stuff on YouTube 0 Distributing the work 0 Selling 0 Public performance 0 Usually about music and movies 0 Public display 0 Public digital performance of sound recording What is the duration of copyright protection for a creator of a work What if the copyright holder is a corporation 0 Individual authors life plus 70 years 0 Corporation 120 years from date of creation or 95 years from date of publication whichever comes first What was the duration of copyright protection before 1978 0 Life of the author plus 50 years What 3 elements were required for copyright notice before 1989 0 Copyright symbol 0 Date 0 Authors name Why is registration of a copyright important 0 Recommended for protection from claims of infringement 0 Eligibility to file suit and receive statutory damages in infringement cases What are the steps in registering a copyright 0 Complete and submit application to Copyright Office 0 Pay the 45 application fee 0 Deposit copies of the work What does it mean to say a work is part of the quotpublic domainquot 0 Anyone can use it anytime without your consent 0 Cannot sue for copyright infringement What 3 types of specialized works can be protected under the Copyright Act 0 Compilations 0 Work formed by collecting and assembling preexisting materials or data that are arranged in a new way to create a new original work 0 Collective work 0 Gathering of preexisting works that are already copyrighted 0 Magazines anthologies and corporate reports 0 Derivative works 0 Transformation or adaption of an existing work 0 Translation from foreign languages movie versions of novels dolls based on cartoon characters What is a collective work What is a compilation What is a derivative work 0 Collective work 0 Kind of compilation that can be copyrighted o Gathering of preexisting works that may already be copyrighted 0 Magazines anthologies and corporate reports 0 Must have permission from the individual copyright holders to compile collective work 0 Compilation 0 Work formed by collecting and assembling preexisting materials or data that are selected coordinated or arranged in a way to create a new original work 0 Assembly of facts that wouldn t be copyrightable o Databases telephone directories o Derivative work 0 May be copyrighted Transformation or adaption of an existing work Copyright owner has the exclusive right to create derivative works lncludes translations of languages or movies Created when work is recast transformed or adapted 0000 What in general is a fair use 0 Defense to copyright 0 Attempts to balance competing social interests of encouraging creativity 0 Grants authors exclusive rights in copyright while allowing limited copying for comment and criticsm What 4 factors are studied to determine if a fair use exists 0 Purpose and character of the use 0 Whether use is of a commercial nature or for nonprofit educational purposes 0 Why are you using it 0 Nature of copyrighted work 0 Available for everyone to get o Is it consumable I Use once then throw away 0 Amount of work used 0 More less likely to be fair use 0 Effect on potential market 0 About money 0 Whether or not new product will replace old one in marketplace 0 Effects if its fair use or not more than other factors After the 2 Live Crew case is parody now considered a fair use 0 Yes 0 Parody commerical use use the whole song wont replace song in marketplace and doesn t affect sales 0 Parodies protected under fair use What are the 2 types of works for hire 0 Work prepared by employee within the scope of employment 0 Ex Gatorade made by UF professor thought he owned it but university sued him 0 Sign contract that whatever they create is owned by the company 0 Work specially ordered or commissioned for a collective work if work for hire agreement is signed 0 Sign a contract 0 Independent contractors and freelancers aren t considered employees 0 Works not usually considered for hire unless contract is signed by both parties What 5 types of rights may a publisher buy from a freelancer o All rights 0 All rights to the copyrighted work 0 You don t own it anymore 0 Only that person can print it 0 First serial rights 0 Write article commissioned by Time magazine they are the first people that can publish it anywhere in the world 0 You still own copyright 0 First North American serial rights 0 First person in NORTH AMERICA to publish it 0 You still own copyright 0 Simultaneous rights 0 Permission to publish but doesn t mean someone else doesn t have the permission to publish too 0 One time rights publish it once What is the most common way publishers buy rights from freelancers o Buys all rights but agrees to reassign the rights to the creator after publication What are the possible remedies for a copyright infringement o lnjunctive relief 0 Preliminary and permanent injunctions 0 Stop them from publishing Preliminary may be granted on proof of valid copyright and the infringement 0 Problem freedom of speech hindering expression I Related to marketplace theory 0 Allow all speech into marketplace good bad true untrue 0 Monetary awards 3 kinds 0 Damages o Profits I Demand they pay you amount of they made from copyrighted work 0 0 Statutory damages I Not as big as the first 2 I Minimum 250 and maximum 30000 according to what court finds just I Court can award up to 150000 per infringement o Punitive damage 0 Criminal penalties o Infringement quality is a federal misdemeanor I Up to 100000 in fines and a year in prison 0 Not frequently prosecuted 0 Copyright warning that comes on b4 watching a DVD 0 Looking at behavior and not speech which is why you can go to prison How is a trademark registered 0 Created through adoption and use 0 Registration done through Patent and Trademark Office 0 Have trademark once you start using words or slogan in commerce 0 Gives you 6 months under provisional approval 0 During that time ppl can challenge you 0 Once used registration certificate is given 0 Registration must be renewed every 10 years 0 Can be renewed as long as trademark is used 0 Can last forever How does a trademark differ from a copyright in terms of gaining protection 0 Must be inherently distinctive 0 Could be fanciful made up word I Kodak Google Clorox o Arbitrary I Old Crow Whiskey Apple Computers 0 Suggestive I Vanish toilet bowl cleaner Coppertone suntan lotion 0 Descriptive mark that has acquired secondary meaning 0 When you use that name so many times in commerce people identify that product with you 0 Vogue payless American airlines What act protects trademark holders from infringement What does the act prohibit o Lanham Act 0 Section 43a prohibits I Use of commerce of any mark that is likely to cause confusion about goods or service I Any false or misleading statement in commercial advertisement or promotion that misrepresents the nature characteristics qualities or origins of advertised goods CHAPTER 7 Political Speech What was the constitutional status of corporate speech before Bellotti What is the difference between a contribution and an expenditure What did Bellotti allow corporations to do How did the Consolidated Edison case expand protection for corporate speech How did the Paci c Gas amp Electric case expand protection for corporate speech What is the purpose of the Federal Election Campaign Act of 1971 and what does it prohibit What does FECA apply to What doesn39t it apply to What kinds of corporate participation is allowed in elections Can corporations support PACs To what extent How Who can corporations and unions solicit funds from What are the limits on contributions by PACs To PACs By indiViduals to individuals What are the disclosure requirements under FECA Who is required to register as a lobbyist under the Lobbying and Disclosure Act of 1995 What must registered lobbyists do to comply with the Act Who is excluded from the Act39s requirements What does the Foreign Agents Registration Act require Why is broadcasting regulated What are the duties and powers of the FCC under the Communications Act of 1934 What is the fairness doctrine What remains of the FCC s fairness policies What is the Zapple Rule Political Editorial Rule What is the Personal Attack Rule What is the status of these rules What are the Equal Opportunities Rule and Reasonable Access Rule What does it mean to be a legally qualified political candidate under the equal opportunities rule Can the FCC censor indecency in a political advertisement CHAPTER 8 Commercial Speech Why did the Supreme Court say that commercial speech should be protected in Virginia Board of Pharmacy Does commercial speech get the same amount of protection as political speech Why or why not Is commercial speech protected under the First Amendment to protect the listener or the speaker What is the 4part test the Court developed in the Central Hudson case to determine whether speak is protected under the commercial speech doctrine Can unfair andor deceptive advertising be banned outright What three factors are considered in determining whether an ad is deceptive What are the categories of implied falsehoods Are states allowed to regulate advertising Under what conditions What is the federal agency chiefly responsible for regulating advertising What are the types of remedies available to the federal government to stop false or misleading advertising What types of remedies are open to competitors What types of remedies are open to consumers What are the rules governing advertising of lotteries and contests Can the media refuse to run advertising Under what circumstances can they not In what ways does the advertising industry regulate itself Chapter 9 Obscenity How did the US Supreme Court define obscenity in the Miller case What level of First Amendment protection does obscenity receive Is it legal to possess obscenity in the United States as long as it shows adults Is it legal to buy sell or distribute obscenity Can nonobscene sexual expression be regulated In what ways What is indecency in broadcasting How is it regulated How does the regulation of indecency differ from the regulation of obscenity What are CPPA COPA and ClPA How do they differ How have each of the online statutes fared in court CHAPTER 10 What constitutional rights and liberties are in conflict in highprofile criminal proceedings What types of pretrial publicity may be considered prejudicial What are the judicial remedies for combating prejudicial pretrial publicity other than a prior restraint on the media How is a peremptory challenge used What is a quotfor causequot challenge On what bases are peremptory challenges forbidden according to the US Supreme Court To ensure a fair trial what options should a court consider before placing a prior restraint on the press Under what circumstances can subsequent punishment be used as a possible restraint on the press in covering judicial proceedings What are the bases for allowing restraints on news sources What should a journalist do if directed by the judge to leave the courtroom for the remainder of a proceeding In what two circumstances might the Supreme Court overturn a conviction based on pretrial publicity What can the judge do to punish disrespect in the court What is a grand jury Are grand jury proceedings open to the press Are trials open to the press Pretrial hearings Under what circumstances can they be closed Can jury selection be closed Under what circumstances Are juvenile court proceedings usually open or closed What are contempt proceedings How are they used Compare and contrast the different types of contempt What is the view of the US Supreme Court regarding cameras in the courtroom What is the status of allowing cameras in all courts What are the arguments for and against having cameras in the courts CHAPTER 11 Protection of News Sources Notes and Tapes Does a journalist have a privilege not to reveal confidential sources Can a court require a journalist to reveal a source What did the court say about protecting sources in Branzburg v Hayes Why did the court reject the privilege What did the court say about creating privileges for journalists Why is Justice Potter Stewart39s dissent in Branzburg important What is a shield law Why are state shield laws established How many states have them Do state shield laws provide absolute protection to reporters Can a news organization breach the confidentiality of a news source without having to worry about liability If so under what circumstance would this occur Know the requirements of a contract and promissory estoppel Know how they worked in the Cohen v Cowles Media case Can a warrant be used to search a newsroom Under what circumstances What exceptions What is the Privacy Protection Act of 1980 What is its effect on journalists What are the exemptions to the Privacy Protection Act for work product and documentary materials CHAPTER 12 Access to Information Does the press have a right to gather news equal to the right to publish What is the Freedom of Information Act Does the FOIA apply to federal records state records or both If a federal official refuses an initial written request What should the person making the request do next What are the nine exemptions to FOIA What do they mean What important interests do the exemptions from disclosure under the FOIA protect What is the federal GovernmentinSunshine Act Identify the Privacy Act of 1974 the Family Educational Rights and Privacy Act and the Driver s Privacy Protection Act Should students law enforcement records of campus crimes be released Should student disciplinary records be released What s the law What are the penalties for violation What information does the Homeland Security Act protect What are Sunshine Laws and how do they work
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