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MMC 4200, Week 14 Notes

by: Deena Acree

MMC 4200, Week 14 Notes MMC 4200

Deena Acree
GPA 3.87

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About this Document

Chapter 11. Class on 4/14 was cancelled and changed to being an exam review for exam 3. Confidential sources, constitutional protection, Branzburg v. Hayes, the Branzburg test, the Florida Shie...
Law of Mass Communications
Sandra Chance
Class Notes
media law, Law, mass communication, law of mass communication, first amendment, court systems, SCOTUS
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This 6 page Class Notes was uploaded by Deena Acree on Friday April 15, 2016. The Class Notes belongs to MMC 4200 at University of Florida taught by Sandra Chance in Winter 2016. Since its upload, it has received 15 views. For similar materials see Law of Mass Communications in Journalism and Mass Communications at University of Florida.


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Date Created: 04/15/16
Class Twenty-Five (Exam Review) — 4/14/15 Class 25 was cancelled for the class to do an exam review. Class Twenty-Four (Chapter 11) — 4/12/15 Announcements: • Chapter 7 is cancelled; we will not be covering it this semester • Exam 3 Review will now be on Thursday, April 14th in place of class o We will be able to finish chapter 11 today so two options: • Cancel class • Move the exam review to class o Class chose to move the exam review to our normal class time on Thursday (4:05pm - 5:05pm) • Exam # 3- April 19 (Last day of class) o Individual exam reviews on: • Thursday, April 21, 10:00 am - 12:00 pm • Friday, April 22, 12:00-2:00 pm • **These dates are tentative • Optional Final o Thursday, April 28, 5:30 pm o 50 minutes, same format, cumulative ---- Chapter 11: Confidential Sources Protection of News Sources, Notes, and Tapes • Issue: Court orders demanding journalists testify and reveal confidential sources, release notes a nd tapes. o By taking away the protection for sources, they become less common (they aren't willing to give information if they know that they will be exposed) • Journalists argue their ability to protect news sources is critical to news gathering and investigati ve reporting. • Think Watergate. • Sources rely on promises of confidentiality. • VIDEO: PBS News Wars o When it comes to war reporting (war on Iraq/Iran), the "watchdog press" wasn't always right o When stories depend on sources, the sources better be correct, or the stories will be completely incorrect. o Huge battle between the government and the press when it comes to questioning and verifying news sources Constitutional Protection • Limited First Amendment privilege o Branzburg v. Hayes • U.S. Supreme Court (5-4) rejects privilege and orders reporter Branzburg to testify. • Plurality decision • Case is usually cited for rejecting the reporters' privilege • Only SCOTUS case that considers reporters' privilege • Many people reference the 4 opposing and their opinion when it comes to determining the outcome of cases about sources o The majority opinion says that the court rejects a FA privilege to protect news sources o Branzburg made a video of people who were making hashish o He was subpoenaed and ordered to reveal his sources o Similar cases with Caldwell case and the Black Panthers o All of the reporters involved refused, citing the FA and the press clause; citing that they were given certain privileges by the "freedom of the press" • The plurality opinion recognized that news gathering, including the protection of confidential sou rces, is “not without its First Amendment protections.” • Dissent by Justice Stewart developed a First Amendment “privilege test” Branzburg Test • First Amendment protects journalists right to withhold names unless government satisfies “heavy burden” overcoming privilege. • Government must demonstrate: 1. reporter has information “clearly relevant” • They must be able to prove that a journalist undoubtedly has information that would benefit an investigation 2. info cannot be obtained by alternative means • There cannot be another way for the information to be gathered 3. compelling and overriding interest in info • There has to be a compelling interest in the information (if it is the only way that the case o Lower courts do not rely on this ruling since the majority opinion is the precedent o There is also a variation in the way that the Branzberg Test is interpreted among lower courts Is There a “Shield” for Journalists? • Courts disagree on if or how a privilege exists. • So, many states, including Florida, have adopted a statute protecting journalists. • As of 2012, 38 states and DC have adopted shield laws. o 14 provide an absolute privilege o The remaining have a qualified privilege with some exemptions Florida Shield Law • A professional journalist has a qualified privilege not to be a witness concerning, and not to disclo se the information, including the identity of any source, that the professional journalist has obtain ed while actively gathering news. This privilege applies only to information or eyewitness observa tions obtained within the normal scope of employment and does not apply to physical evidence, eyewitness observations, or visual or audio recording of crimes. A party seeking to overcome this privilege must make a clear and specific showing that: • (a) The information is relevant and material to unresolved issues that have been raised in the proceed ing for which the information is sought; • (b) The information cannot be obtained from alternative sources; and • (c) A compelling interest exists for requiring disclosure of the information. • Problem with this: what makes someone a professional journalist? Federal Shield Law o There is no Federal Shield Law • Free Flow of Information Act • Passed House in March 2009; Senate Judiciary Committee in December 2009 • (still) Pending before full Senate o Most contentious issue: • Definition of a “journalist” – A person who has the intent to disseminate information to the public o In Aug. 2010, the Wikileaks scandal prompted lawmakers to consider changes to the bill that would exclude sites like Wikileaks. Still not passed. • Latest version introduced in 2013 o supported by White House, but many journalists do not believe it protects them adequately o It also limits the definition of journalists too much New issues presented by the Internet • Question is now…who is a “journalist”? o Journalists are awarded the same kinds of protections as regular citizens (no additional protections, privileges, etc.) o There is inherently a problem with giving journalists special protections that aren't given to regular citizens o This is also why the "professional journalists" title (FL Shield Law) is inherently problematic • Anonymous Bloggers o Courts are struggling to deal with this type of p roblem o Balancing First Amendment rights to anonymous Internet speech and the right to pursue re dress of alleged wrongs o Standards may be different for civil and criminal cases Anonymous Internet Speech • Two main types of subpoenas: o From law enforcement seeking the identities of posters who appear to have inside information about a crime o From civil litigants seeking the identities of posters of potentially defamatory remarks • Benefits of being anonymous: o Personal life doesn't get targeted o Marketplace of ideas —more voices can join the conversation, there are no repercussions for voicing your ideas • "More speech is better" • This (the marketplace) is what allows us to obtain truth • Negatives of being anonymous: o People say things that are damagin g or hurtful • Defamation, cyberbullying are magnified • There are some instances where the government can force someone (or the ISP) to reveal someone's identity — this is where the subpoenas come in Anonymity & the Internet • Right to anonymity protected by the First Amendment, but this right is not absolute • Web site operators must sometimes reveal the IP and email addresses of anonymous posters • Most courts apply either Dendrite or Cahill tests to determine if unmasking is justified o Not discussing the Ca hill test (do not need to know) o Most courts apply the Dendrite test (specifically for defamation suits) Dendrite Test 1. Plaintiff must make an effort to notify anonymous poster of an application for disclosure o Gives them the opportunity to disclose their identity before official proceedings occur 2. Plaintiff must identify allegedly defamatory statements o They have to go through the process of determining if a statement is defamatory to do this 3. Plaintiff must provide evidence to support cause of action, including harm incurred 4. Court must balance First Amendment rights against plaintiff’s rights • Was not a SCOTUS opinion, so it isn't a binding precedent Breaching Confidentiality • When newspapers “promise” confidentiality, they create a contract and can be sued if they violate that contract. o Contracts = you're getting something in return for something else; never a gift o When it comes to confidentiality, the agreement is that the journalist will grant anonymity in return for the information • Cohen v. Cowles Media Co. o Cohen was a source; reporter had promised confidentiality but editors decided that naming the source was important for the story's credibility o Also said that the fact that he (in his position) was bashing the other candidate was a story in itself o Court said that reporters (like any other citizens) may be held responsible for the commitments that they break o Cohen won a $200,000 verdict o If a reporter was required by another court to expose a source, they could still be sued • If the source relies on their anonymity to their detriment (lose a job, etc.), you can be sued • You should not ever rely on the promise of anonymity unless you absolutely have to do so in order to get the information • Based on the principle of Promissory estoppel o A promise in itself does not equal a contract • Journalists cannot break general laws and then try to claim a First Amendment exemption from them Newsroom Searches • Privacy Protection Act of 1980 o Protects 2 categories: 1. Work products § Reporters' notes, undeveloped films, outtakes, etc. 2. Documentary materials § Any material where there is information that is formally recorded • Typically subpoena required (not simply a search warrant) o Subpoena = court order that says you have been called to appear at a proceed ing and you have to supply certain documents o A simple search warrant would allow a blanket search of a newsroom o The protection act requires more protection for newsrooms, etc. o It's always an option to go to jail to protect your sources (refusing to provide info will lead to you being held in contempt of court = jail time) Advice for Journalists • Don’t give a promise of confidentiality unless it is absolutely necessary to get the story. • Ask to talk to legal counsel. • Know your media organization’s policy. • If (you) disagree, hire your own attorney. o Their attorney represents them, not you.


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