MASS MEDIA LAW
MASS MEDIA LAW MC 3080
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Popular in Journalism and Mass Communications
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Date Created: 10/13/15
0h sh101909 START OF NOTES FOR FINAL Political Speech Referenda and Public Issues 0 First National Bank of Boston v Belloti Protection for expenditures for referenda and other social and political issues Corp couldn t spend money on referenda on things that didn t involve their business FNB wanted to put up ads concerning referenda SC said they had right to freedom of speech I Corporate speech but right to speak freely I Have protection on speech from referenda wasn t based on corp right to speak based on rights of indiv to get info from companies 0 Consolodated Edison Co vs PSC of NY 0 Protection for onesided political speech 0 Consolidated Edison utilities corporation gas water I Wanted to put flyers in utility bills info geared towards political issues 0 PSC said f put one side must put the other 0 SC said they didn t have to put both sides I Protection for one side of political speech I Politician doesn t have to give both sides so neither does corporations 0 Pacific Gas amp Electric Co vs PUC of CA 0 Protection against compelled speech 0 PGE sends out bills and citizens group wanted to make PGE to insert info in their mailings on how to save money I Wanted PUC to force PGE to do that 0 SC said that you cannot make corporation say certain things I Didn t have to mail out the consumer groups flyer with their bills I Didn t have to pay to send out other ppls speech 0 O O 0 Elections 0 Federal Election Campaign Act of 1971 o Applies to corporations and unions 0 Prohibits contributions or expenditures from corporate treasury in connection with candidates from federal office 0 Federal aw states can have their own 0 Cannot make expenditures or contributions from their own treasury 0 Purpose to prevent corruption for the electoral process that might result if massive corporate capital enters the election process 0 Applies to business corporations I Profit making organizations I Austin v Michigan Chamber of Comerce 0 Can put limits on expenditures on corporations 0 Does not apply to ideological corporations I Nonprofits o Aren t set up to make money 0 Except donations but don t accept them with idea to conforming to whomever makes a donations I Federal Election Commission v Mass Citizens for Life Inc 0 Mass ideology corporation 0 Set up to promote certain idea 0 Antiabortion group 0 Don t want to make profit just get idea out and influence 0 Prohibited contributions or expenditures 0 Gifts of money ads securities member lists 0 Contributions of free or reduced price services to candidates 0 Expenditure does not include the cost of producing news commentary or editorial distributed by a broadcaster newspaper or magazine 0 Permitted corporate participation in elections 0 Corporations can buy ads to discuss the issues issue ads associated with a candidate but cant urge election or defeat of a candidate 0 Soft money contributions to state and local political parties for voter registration drives now limited I 10000 a year I Donations given to organizations I Not promoting certain candidate want ppl to vote 0 Corporations can form and support PACS 4 issues involved I Sponsorship of PACS I Solicitation of funds I Contributions by PACS I Expenditures by PACS o Corporations and unions may support PACS and engage in partisan communication 0 Must be directed only to the corporate or union quotfamilyquot 0 Disclosure requirements for elections 0 Donors and amounts of contributions and expenditures must be disclosed 0 Each political committee and federal candidate must register with the FEC 0 Each committee and candidate must keep a detailed record of contributions above 50 and expenditures 0 Source of funding for ads must be disclosed if the ad advocates election or defeat of a candidate I lndentify the sponsor must be clear and conspicuous I Candidates and their committees must file periodic reports listing contributors and recipients 0 Why is broadcasting regulated o Earliest regulation I Ship to share and ship to ship maritime I Regulated commercial things I Problems not just ships using radio newspapers would get radio stations to advertise its paper I Regs included the Wireless Ship Act of 1910 o If have ship with more than 50 passengers must have radio and someone who knows how to operate it on board I Regs included Radio Act of 1912 0 Secretary of commerce was a figure head with respect to regulation radio 0 Said you cant be on same station but would get taken to court everytime he tries to regulate Efforts at self regulation fell through 0 Industry asked for regulation 0 Radio act of 1927 I Estab federal agency to oversee who gets a liscense to broadcast I Established Federal Radio Commission I Five members appointed by the president with the advice and consent of the senate I Precursor to the FCC what we have now 0 1934 act I Many of rules and regulations are still in place now I Foundation for what we have now I Communications Act of 1934 I Passed by congress I Merged the federal Radio Commission with the Federal Communications Commission FCC I 5 members members are elected by a staggered manner 0 Every 2 years can appoint new people 0 Term ends every 2 years 0 No more than 3 commissioners are allowed to be in the same political party 0 FCC Regulation 0 Act charged the commission to I Regulate wire and radio communication I Require that broadcasters operate in the public s interest convenience and necessity o PICON 0 Public interest convenience or necessity What information is impt for public to have information about What are issues citizens need to be informed about How best to get info to ppl but through these mediums of communication 0 DutiesPowers of the Comission I Make policy for the telecommunication industry I Enforces Congressional and Commission policies I Can pass regulations or rules like congress passes law 0 Challenges to the Broadcast Regulation 0 Red lion broadcasting vs FCC I Red lion owned radio station and had on air preacher I Preacher did a book review on Barry Goldwater political figure 000 0 Calls author a communist and facist got fired from news station because made false statements 0 CBS v I Author of book demanded opportunity to respond to personal attack under personal attack rules 0 Restore his reputation Red lion refused to let him FCC said they needed to comply with personal attack rules SC said had to do it because it s a regulated medium 0 Broadcast is different than print material 0 Very regulated Democratic National Committee 1st amendments doesn t require broadcasters to provide airtime to specific individuals or groups DNC went to FCC to force CBS to run issue ads bc CBS denied them 0 FCC said they had to Went to SC and said that they didn t have to run these issue ads Fairness Doctrine o Estab in 1949 0 Citizens need to be informed about certain issues impt to everyday life and making political decisions 0 Adopted by FCC o 2 parts Stations must air controversial issues Stations must allow opposing viewpoints to be heard 0 Show both sides of issue 0 Challenges 1987 FCC not US Supreme ct dumped the Fairness Doctrine 0 Some of rules no longer necessary 0 Questioned the constitutionality of applying the first amendment to broadcast journalists 0 Led broadcasters to do the minimum with respect to controversial issues 0 Didn t wanna cover it in depth bc require to have both sides of the issue o If just had news clip on issue would be different from having a full on debate of the issue 0 3 things remain after 1987 Zapple Rule 0 Named after congressional staffer o Said if you were going to allow political supporters of one political candidate to run ads you had to run opposing view 0 Didn t cover advertisements with candidates voice or picture 0 Just for their supporters 0 None of the ads could say ll am blah and I approve this message Personal Attack Rule 0 Same attack used in Red Lion o If you allow attacks on candidate had to allow them to respond 0 Give them a transcript write a notice Political editorial Rule 0 Owners of station would take time out of day to specifically endorse a candidate or attack opposing one 0 Had to give opposing candidate notice after they aired the endorsement or attack 0 Opposing candidate had right to respond I All these were after the FCC dumped the Fairness Doctrine o 2000 RTNDA v FCC I Combination of 20 year case by media organizations to get rid of fairness doctrine rule bc infringed on broadcasters first amendment right and free speech I After this only thing that remains is the Zapple Rule 0 Two requirements of the 34 act involving political candidates 0 Equal opportunities rule I Allow one candidate to purchase time have to allow opposing candidate or other legally qualified candidates for same office to purchase time at the same rate I Allow them equal opportunity I If let one use faciilties must allow others too I Legally qualified candidates 0 Legally qualified under constitution or state laws 0 Reasonable access rule I Had to let candidates running for office have ads I Cant sensor ads or channel advertisements in certain times of the day only 0 Exempt from these rules I Legitimate news cast I News interview 0 Very broad 0 Ex jay leno and conan are news interview 0 Can have john mccain without requiring obama to show up I News documentaries I Press conferences where candidate were to appear 0 Rules are still in effect 0 Lobbying 0 Federal Regulation of Lobbying Act of 1946 I Supposed to regulate how you were to interact with law makers I Problem vague I Found to be ineffective I Unclear statutory language and weak enforcement o Lobbying Disclosure Act of 1995 I More disclosure I Requires reg if government lobbying income exceeds 5000 over 6 months I Defines lobbying 0 Contact with specific law makers 0 Those in senate and house 0 Control over what laws are passed 0 Not just corporations or ppl acting for corporations but nonprofits as well I Nonprofits must register 0 Doesn t include grassroots groups I Must file semiannual statements I Excludes 0 Some public officials 0 Newspapers and other mass media 0 People who testify before congress 0 Lawyers and others whose lobbying efforts are less than 20 percent of their work for clients 0 Honest Leadership and Open Government Act of 2007 I Severe restrictions 0 Foreign Agents 0 Foreign Agents Restriction Act I Foreign countires cant spend money to influence our elections I lnclude public relations people in foreign owned companies I If passing out literature must be labled its from whomever 0 Government concerned about how money can affect political process Commercial Speech Advertising had no 1st Amendment Protection lsl just meant to make S for the seller not helping political discourse or helping people know who to vote for Valentine v Chrestenson 1942 0 1st time court laid out free speech doctrine 0 NY had a law banning hand bills flyers that were advertisements o Worried about keeping NY clean 0 Chrestenson owned submarine and wanted to advertise tours and started handing out flyers 0 Already had beef with city bc wanted to park sub at one wharf and they wouldn t let him do it 0 Police officer tells him to stop 0 Takes the other side of the hand bill and writes political creed on it o Venting his rage against the city 0 Handbill on one side advertising tour of sub and other side vent about city government 0 Still purely commercial speech I Court said he s just trying to circumvent the law I One side of hand bill still about selling something doesn t matter that you wrote antigovernment rant on one side I Still purely commercial speech and it didn t have protection o If you wanna advertise must follow rules with what government said 0 Can prohibit you from advertising without infringing on rights New York Times v Sullivan 1964 0 NY Times allows civil rights organization to purchase full page ad talking about police in Alabama 0 Police locking lunch room etc 0 Errors in advertising 0 Paid political speech Different from hand bill O 0 Even though its paid for doesn t change it from being political speech Speech about movement that was critical to what was going on at that time Pittsburg press co vs Pittsburg commission on Human relations 0 OO O 0 Late 60s civil rights movement for blacks and women I Gender equality and equal pay Many states passing laws with respect to equal opportunities for women One of laws said that newspapers in Pittsburg couldn t separate classified job ads by gender I Before this time they were separating job ads I Women would get jobs that were like maid secretary teachers domestic jobs I Men would get jobs like banker doctor lawyer etc PPC owned paper that continued to do so Human relations commission called them out but PPC said law violates 151 Amendment right of freedom of press SC said it wasn t violation of first amendment rights I All they want you to do is follow the law Bigelow v Virginia 0 O O O Courts ruled abortion was legal State of VA had law that you couldn t print abortion referral services advertisements in papers SC said that it was a legal service and constitutionally protected I Cannot prohibit ad for constitutionally protected service State is supposed to protect safety and welfare I Having info about where to get one is impt under public policy VA Board of Pharmacy v Citizens Consumer Council 0 O O O O O O 0 Board of pharm had rules for pharmacisits that are certified that must be followed One of rules cant advertise drug prices in windows CCC represents elderly ppl chronically ill I Ppl who would want to know price of drugs Board was worried about the pharmacist doing the right thing and spending too much time worrying about advertising I Mixing the right drugs Consumers have a right to information I Info is so necessary and basic to people of CCC I Need drugs and need to know the price in order to make the best descisions for them and to save money since they do not work and income is fixed Theories that apply to advertising Marketplace of ideas Self Governance I Need to have most information available that affect their life I Advertising helps them make those decisions 0 Need to know the cheapest price 4 h Estate I Check on big businesses Central Hudson Gas and Electric Corp v Public Service Comission 0 Lots of fuel shortages so blackouts and people would go without power 0 In order to help curve shortage PSC passed rule for big utilities companies I Ban certain types of advertising sent to customers I No advertising bc in their mind advertising is connected to fuel usage 0 Blackouts happening in summer months I Will be using fans and electricity in some way 0 4 part test made by SC all equally important 0 Expression is protected by the first Amendment I Lawful are you advertising a lawful service use of lawful service in unlawful way 0 Ex Wesley Snipes got in trouble for tax evasion 0 Guy sold a book on how to get around paying federal income tax 0 Advertised this book 0 Not lawful because have to pay income tax 0 Promoting unlawful activity 0 Smoke shop advertising can be considered unlawful I Not misleading I Certain kinds of ads for certain things that aren t promitted Governmental interest is substantial I Whats substantial 0 Health morals welfare astetics beautify the city 0 Regulation directly advances the governmental interest I Provide some kind of evidence surveys or studies to prove it o Governmental interest could be served as well by a more limited restriction on commercial speech 0 Used for things as silly as casino advertisements I Court said they can ban casino advertisements 0 Government interest Gambling limits big business protecting morals of community brings corruption crime and prostitution o Narrowly tailored 0 GET NOTES FROM WEDNESDAY AND FRIDAY Securities transactions 0 Fraud 0 Knowingly making false and misleading statements in any mandated or voluntary disclosure would be fraudulent o Fraudulent statements include I Materially deceptive facts in the form of misstatements or omissions and a failure to disclose payment made by the corporate entity for publicity Publishers and PR practicioners must make these disclosures Times when such statements are made in conncetion with the purchase or sale ofany security I Failure to correct a financial statement attributed to the company Failure to disclose insider trading Adequate disclosure 0 Disclosure must be broad and timely Obscentity Obscenity is outside the protection of the first amendment Obscenity is a legal term and should not be confused with pornography which has no legal meaning except for child porn 0 Not all pornography is obscenity and porn that isn t obscene may be protected speech under the first amendment to some extent Hierarchy of 151 Amendment protection 0 Top level social and political speech 0 Advertising and non obscene sexual expression 0 Bottom fighting words false advertisement and obscenity Gets no protection under first amendment How do we define obscenity 0 Woman goes to library and sees book changing bodies in sex and sexual health I Says book is pornographic I Is book obscense nope o AampF posters and catalogs I Offensive to different standards of people 0 Sex tapes I Using cell phones and taking pictures ofjunk and sends to friends I Transferred around and posted 0 Dakota Fanning movie Hound Dog I Raped on screen put flesh colored unitard so wasn t actually raped I Actual rape scene showed 0 Things including children more likely to be obscene o 1815 I First prosecution for obscenity in US I man was showing picture that had man and woman in inappropriate embrace I Had other cases but were tried as llcrimes against gods 0 1873 I Passage of Comstock Act I Helped by Anthony Comstock 0 Anything corrupting of morals 0 Books art music poetry anything that could be seen as immoral 0 Had burnings I Got helped from post office o If sent through mail they could destroy it I Broad definintion of obscenity o No legal definition 0 Pinklin vs Regina I English court said anything that would corrupt the morals of most impressionable ppl were seen as obscene I Adults couldn t even look at certain art 0 US v Roth I SC set out a test for what was seen as obscene I Lasted only until 1973 O O 0 Miller test I Miller v CA 0 Miller sent out sexually explicit materials over the mail 0 Sent out unsolicited advertisements o 5 of those ads he sent to a resteraunt 0 Owner of resteraunt and mom opens envelops for sexually explicit o Arrested under CA statue that made in a misdemeanor o Appealed to SC 0 Said obscenity gets no 1st amendment protection 0 Obscenity must be defined 0 3 part test o If material in question appeals to prurient interest of the average person applying contemporary community values 0 Material depicts or describes in a patently offensive way sexual conduct specifically defined by applicable state law I sexual expression 0 Taken as a whole it lacks serious literary artistic political or scientific value I Look at the thing in total not just clips of it o EX AF catalog I Taken as a whole artistic o All 3 parts of the test must be met before a work is defined as obscene o EX Madonna video like a prayer video I Running in rural TX and goes into a church and theres jesus that cries blood lots of candles jesus statue comes to life and he dances with her and gospel choir singing in background kisses him 0 EX artist 0 20 ppl naked in times square standing on glacier is art 0 Woman on street says that it isn t art 0 of what s obscene and whats art 0 Do we need to see naked flesh to see vulnerability of environment I Having ppl on glacier gets his point across about global warming what artist says 0 Cant make distinctions through medium might not be the medium but the message What s prurient Interest I Appeal to be lascivious shameful or morbid interest in sex I Concerned with things that are really far out there I EX dead people ppl being harmed for sexual gratification etc I Determined by an llaverage person adult would find lascivious shameful or morbid 0 Middle of the road people What s community standard I Court says there should be no national standard because its made up of diverse communities 0 Whats allowed somewhere might not be allowed elsewhere I People on jury would be from that community and apply those standards I Obscenity criminal offense can get jail time 0 Pick people from local community who are affected by your crime to be n jury I Allows each community to decide what is obscense by opinion polls orjury votes I What about the internet 0 Federal gov looks for strictest jurisdiction 0 Anyone can buy this material and grounds to bring case in any venue they chose since it can be attained by anyone anywhere o Minors o Courts have ruled that what is not obscene for adults may be obscene for kids 0 Government may ban sale of material to minors that appeals to the llprurient interest of minors but not adults 0 Child porn I Works depicting kids under age 16 performing sexual acts are always illegal I Distributors and producers of child porn may be prosecuted I Want to protect kids I Always illegal 0 Recent Congressional Efforts to Protect kids from porn 0 Child Porn Provention act I Banned virtual child porn on internet I Child porn based in virtual kids not real ones I Problem 0 No one is being exploited o Courts said its unconstitutional 0 Child online protection act I Communications indenceny act 0 Passed as Telecommunications act 0 Said online service provider website weren t allowed to let kids get indecent and obscene info 0 Problem didn t define terms indecent or obscene in respect to the law 0 Adults would be restricted from receiving info 0 Found this vague and overbroad I Put in age verification mandate 0 Find out age before using certain materials 0 Court said this is too restrictive 0 Less restrictive way to have parents install filters on computers 0 Parents block what kids are doing 0 Lessen possibility of adults being restricted to getting info they are constitutionally allowed to see I unconstitutional 0 Children s internet protection act I Public libraries receive federal funding to run Have computer stations to use internet Anyone can use them Perv looking at sexually explicit things in public sitting next to kids I Concerned with kid looking at what neighbor is seeing I If get federal funding must block sexually explicit sits I If adult wanted to view that site you can ask librarian to unblock the site I Court said this is constitutional lnterest isn t being embarrassed by asking librarian to look at sexually explicit interest 0 All 3 have had constitutional challenges I Language is overbroad and vague I Banning adults from getting info as well as kid I Don t define things 0 Some have gone too far and ban things adults should see that kids shouldn t 0 Certain clauses in acts were found to be overbroad and vague I Some parts of act were seen as okay 0 States can pass laws prohibiting kids from seeing obscene materials 0 What is Patent offensiveness 0 Part of definition for obscenity 0 An excess of sexual detail and the repetitive nature of the activity I Ex sex tape with no plot and nothing outside ofjust sex 0 Scenes of erection penetration or ejaculation I Total focus of content 0 Scenes of heterosexual or homosexual intercourse fellatio cunnilingus maturbation and group sex I Mere nudity or the use of4 letter words don t count 0 What s social value 0 Court in Miller case said the work must be considered as a whole not on basis of a few isolated passages o A llreasonable person not average person like in 1st part of Miller test must determine if te work has any artistic literary political or scientific value I Look at it and ask if SOMEONE could find value in the work I Value social political artistic value 0 lndecency Compare 0 Has first amendment protection 0 Still can be regulated I FCC regulates indecency in broadcasting 0 Doesn t apply to entire clip I Could just be a snipit o Bono vs Saving Private Ryan I bono O 0 At Grammys Gets an award Says the fbomb live Indecent 0 Yes SPR o Whoever broadcasted grammys were fined Says F word multiple times in movie 0 Janet Jackson vs Nicollette Sheridan JJ 0 NS 5 minute performance at Super Bowl Boob pops out at end of the performance 0 2 seconds 0 Tons of complaints Said it was indecent Commercial before Super Bowl She was in locker room talking to T0 and her towel dropped Showed her naked back Wasn t indecent 0 Howard Stern vs Oprah 0 lndecency HS Talk about all kinds of sex on radio Got fined a lot for that commentary Had strippers porn stars etc on show No point to this conversation Had show on teens and oral sex Talking about slang terms kids use for sex and translating it for parents Considered quotinformativequot so can get away with it 0 Teaching parents what they need to know about their kids FCC says context is everything 0 Regulated by the FCC 0 Defined 0 FCC v P as Language that in context depicts or describes in terms patently offensive by contemporary community standards for the broadcast media sexual or excretory activities or organs at times when kids are likely to be in the audience Protects kids from seeing indecent materials 0 Stems from case where power of FCC vs radio station acifica Foundation Most impt case to broadcasting Dad riding in car with son Turns on regular broadcast radio George Carlin s 7 dirty words you cannot say on TV is on radio Filed a complaint Pacifica Foundation owned station FCC gave them a warning Pacifica said they didn t have the authority to regulate the broadcast because its infringes on freedom of speech Went through court system SC said FCC has the power to regulate indecent broadcast Reason 0 Fact that broadcasting in pervasive and invasive 0 Once you turn the channel you re assaulted by the language 0 Fact that station put warning at the beginning of the skit didn t matter bc if you tuned in after the warning didn t get it o No way to stop yourself from hearing that language Cant control what comes at you with broadcasting Aspect of kids hearing broadcast like this I Around everywhere so kids will get to hear language like this Want to protect kids from hearing this I Doesn t mean FCC can totally ban indecency bc it gets some level of 1st amendment protection 00 Courts said there is a safe harbor 0 Certain times of the day where indecent broadcast is safe 0 From 10 pm to6am I Kids are in bed during that time What does the FCC deem indecent Expletives 0 When used to describe sexual or excretory organs or activities Sexual innuendo Descriptions of sexual activities or organs Descriptions of excretory organs or activities 0 NonObscense Sexual Expression 0 Obscenity can be banned 0 Sexually expressive materials that aren t obscene cannot They can be restricted o EX NewJersey 0 Zoning City came down on dungeon sex film Use dungeon to act out fantasy Weren t zoned properly to use facility Was zoning a ban on expression these people were trying to display lsn t restriction on free speech rights City of Renton v Playtime Theaters lnc Court said a city can adopt zoning restrictions on theaters and bookstores that carry adult merchandize even if its not obscene Couldn t be within 1000 feet of schools churches playgrounds and certain other organizations 0 Zoning law pressed theaters and stores to outskirts of community vs being able to be downtown or wherever they wanted Owners of theaters went to court and said it wasn t constitutional and violation of freedom of speech 0 Courts said it wasn t a ban on freedom of speech I Not at heart of expression O 0 Not banning your expression Content neutral timeplace manner Can say whatever you want just in certain boundaries Afraid of secondary effects in areas they have families or lots of tourist Scared of what comes along with it crime perverts trash advertisin you need wont be appropriate for neighborhood you re in I Barnes v Glen Theater lndiana could ban nude dancing the court ruled to protect societal order and morality South bend lndiana home of Notre Dame had ordanance that banned public indecencynudity Owners of strip clubs said that infringes on first amendment rights of dancers because expressive behavior Nude dancing expressive behavior and does receive little protection Banning nudity in public 4 part test 0 Whether the governmental regulation is within the constitutional power of the government I Can regulate nudity in public 0 Whether it furthers an impt or substantial governmental interest I Public health with ppl walking around naked 0 Whether governmental interest is unrelated to suppression of free expression 0 Whether restriction on 151 amendment freedoms is no greater than is essential to the furtherance of that interest Violent Pornograpgy I Scientific studies say that there may be some link btw viewing of violent porn and real life aggression toward women I American Vooksellers Ass n Inc vs Hudnut Media and Judiciary Federal appeals court struck down Indianapolis ordance that made certain types of porn illegal Ordinance defined porm as the graphic sexually explicit subordination of women and did not ban graphic sexually explicit material that did not subordinate women Appeals court daid the ordanance was unconstitutional bc it banned material that wasn t obscene and the decision as to what was banned porn depended ipn whether the work depicted women in a way that was officially correct Court called the ordinance s definition of porn thought control Adults are loosing rights to receive information When someone s arrested for a crime and it s covered in news what happens issues 0 Such large amount of publicity given to trials might affect outcome The Pret Juro The Pret o Allowing media in court rooms to cover trials affects way trial participants behave infront of cameras 0 So many court shows cop dramas affects how ppl perceive the justice system I Expect DNA results to come back fast etc problem 0 First amendment provides for a free press I Free press acts as check on government includes judiciary I Want to see judiciary carrying out justice properly I Just bc free press clause in 151 amendment doesn t mean free press was more impt than a fair trial 0 6 h amendment provides for a trial by impartial jury I Unbiased jury I Conflicts with right to a speedy trial 0 Both are in conflict 0 Leads to competing constitutional rights 0 Free press v fair trial rial Publicity 0 Any kind of news reports in broadcast or in printinternet that might bias the jury against you if you re criminal defendant rs should be unbiased 0 Means as a juror you should be free from dominant perception of case 0 Look at facts presented in court not in media and make an evaluation and decision based on those facts 0 Don t use information received before being placed on jury 0 They may be familiar with some of the facts of the case not totally ignorant 0 They must not have a predisposition against the defendant 0 Defense attorney when ing juror must weed out jurors biased against their client 0 They must cast aside any preconceived ideas and decide the case on the evidence in court US Supreme Court will overturn a conviction due to pretrial publicity only if 0 The court finds identifiable bias in individual jurors I Erwin case in book 0 On trial for murdering a woman 0 Polled the pool ofjury members and almost all thought he was guilty for the trial 0 8 out of 10 jurors said he was guilty 0 An extraoridanry amount of prejudicial publicity in the media raises a presumption of prejudice rial publicity that can be prejudicial 0 Confessions Prior criminal records Results of policeinvestigator tests Character flaws or lifestyle Potential witness testimony or other evidence 0 Speculation by officials O O O 0 Worst Case scenario 0 Sheppard v Maxwell Doctor living a nice life and wakes up to find man standing over body of wife Knocks out the man and neighbor comes over and finds wife dead Convicted of murdering his wife and sent to jail Appeals focused on so much pretrial publicity so couldn t get a fair trial Things in paper journalists could sit right next to where he was sitting in court etc I SC overturned conviction I Died soon after he got out of prison I Shows how bad it can go with pretrial publicity o Remedies to lessen the impact of pretrial publicity 0 Change of venue I Taking case and moving it out of parish where crime happen I Move to neighboring county where publicity hasn t spread 0 Change of venire I Bussing in jurors from outside your county I Don t move whole case just bus in jury from another county 0 Continuance I Judge will grant motion to push back the jury selection date in order to lessen amount of publicity going on I As time goes on news moves on to different story and ppl forget what s going on I Waives right to speedy trial because it takes more time o Severance I 2 or more defendants being tried for same case 0 Voir Dire I Jury selection I How attorneys go about selecting juries from pool I Give written questionnaires to weed out ppl I Then have people sit in jury box and will ask them questions to try to rid juries asking those s I 2 types of challenges I Challenges for cause 0 Attorney convince judge to get rid ofjuror for specific reason 0 Ex juror is racist from s they answered I Peremptory challenges 0 Challenges reserved for ppl judge wont let u kick off jury 0 Little amount of these given I Cant use challenges to disclude certain kind of person offjury 0 Ex cant kick all black ppl offjury I Want to get jurors that are kind of leaning towards your side or think are maluable can be swaded to your side 0 Sequestration I You are holding jury in hotel and have to live together eat together hang out together I Have news channels in hotel blocked if get newspaper guard will cut out articles about trial I Told not to discuss case outside ofjury room I Problem some trials last for months so ppl are away from their families stressful forjurors costs a lot of S to put them up 0 Judicial Admonition I Judge will tell jurors not to talk about this don t read articles about trial stay away from extra info don t discuss this Take duty as juror seriously GET NOTES FROM FRIDAY 0 Controlling Pretrial Publicity 0 Access to courtrooms I Trials are presumed to be open 0 Richmond newspapers 0 SC ruled that public had right to attend criminal trials 0 Man attempted to be tried 3 times already each time something happened where it led to a mistrial Close the trial if something happened Objected to closed trial RN Press had right too bc member of public Based its ruling on the right to assemble I Courtrooms public places and because they are public places people can go to speak and observelisten 0 Members of public don t have time to attend trials time or resources to attend trials 0 Press acts a surrogate for the ppl I Stands in place for ppl and reports on happenings at the trial 0 Press 4 h estate I Acts as check on government 0 Globe newspaper company 0 State of Mass Had statue that automatically any case where a juvenile was testifying concerning sexual abuse had to close cases and public couldn t attend Interest to protect juveniles to not shame them into silence cant automatically close trials I Must go on case by case basis 0 Federal judge banned twittering from court o If ban cameras twitter is same as having TV broadcast in the court 0 Update in realtime I Jury selection processes ordinarily open 0 Press enterprise I o Rape and murder case 0 Black man in CA accused of raping and killing white teen girl 0 Also convicted on raping a kid before 0 Judge concerned about jury s answers I Wanted to respect their privacy who may have had to answer s about if they or knew someone who had been sexually assaulted 0000 O 0 Protect them from shame and embarrassment 0 Closed jury selection and paper objected it 0 SC said cant close selection at discrescion I If close the selection need 0 Overriding interest 0 Strict scrutiny o Compelling interest 0 Has to be weighed against press right to gain info and public s right to go to trial 0 Closing that portion will be effective in protecting that right 0 But jury selection can be closed if there is an overriding interest such as fair trial or privacy that must be protected I Pretrial hearings o Presumed to be open 0 Closed only when there are 0 Compelling reasons 0 No alternatives I No other way to protect privacy than closing the pretrial hearing o It would be effective 0 Closure is only as long as necessary I Only close as long as necessary to protect interest 0 EX TCU basketball players arrested for sexual assault 0 Question ifjudge would show favoritism by closing pretrial hearing 0 Issued gag order too due to popularity of basketball program 0 Media and Judiciary I If you are covering a trial and you are asked by the court to leave wat do you do 0 Read the card 0 Given to you by your organization 0 Request to not close the trial and have a hearing on whether or not to close the trial 0 Legal council for your organization will come in and present arguments 0 Using the card allows you to do 3 things 0 Object to the closure of the proceding 0 Request a hearing at which legal counsel can present arguments on issue of closure 0 Request adjournment or continuance o Asserting rights as a journalist and member of the press 0 Judge doesn t have to grant this I Contempt of court 2 types 0 Criminal contempt o Acts done in disrespect of the court or its process or which obstruct the administration ofjustice 0 Ex yelling something outloud in court 0 Civil contempt 0 Failure to do something which the party is ordered by the court to do 0 Ex john gosling almost found in contempt because wouldn t return S he took out of account could have been placed in jail since it was court ordered 0 Held ppl in contempt with things done outside of court I Paper printed something about judge in trial like not running court well and judge takes personal offense and tries to hold journalist in criminal contempt Courts said you cant hold someone in contempt for writing crisitcims about judges o Punishment for Criminal Contempt 0 Person could be charged with a contempt crime under state statue I Or summarily held in contempt by the judge 0 Person could be fined andor 0 Imprisoned up to 6 mos wout jury trial 0 Up to the judge to decide punishment 0 Purpose of punishment is to indicate the dignity of the court 0 Punishment for Civil Contempt o The person is ordered into custody o Fined progrsssively 0 Or both 0 Punishment remains in effect until the contempt is purged thru compliance 0 You decide your own fate 0 Protection for News Sources 0 The problem I Journalists sometimes gather information that others court litigants and law enforcement officials want Sometimes the information can be obtained from other sources sometimes not Those who need the information for litigation or law enforcement will often issue subpoena to the journalists o No way to get this information o 2 kinds 0 Appear before court and testify I Aren t new I 1848 o Journalist subpoena before Senate refused to give up information about who gave him info on treaty 0 Produce materials we want The subpoena is usually turned over to the supervisor for a decision on whether to O testitfy and produce documents and other requested materials or challenge the subpoena 0 Usually when a subpoena is challenged it is done on the basis of a priviledge o Priviledge can be based on I Common law 0 Shouldn t be forced to testify because look at cases in district journalists have been priviledged not to testify in these case 0 Courts rule that journalists didn t have to come and testify and provide these documents I Constitutional proviledge state or federal o lnfringes on freedom of press if asked to testify 0 People speak to journalists sometimes if their name is kept private ppl will stop talking if they have to testify and journalists will lose sources I Statutory priviledge 0 Shield laws lts argued that journalists need a priviledge of confidentiality with their sources with respect to the identity and sometimes the information itself I If cant keep name private wont be able to get certain information I Name will be kept secret forjournalists to only know Those who challenge the subpoena can do so on a Motion to Quash the subpoena I Subpoena court order so file against that court order In deciding this motion court considers I Relevance of information the governmentplantiffdefendant is seeking I Need for the information or document 0 Whats purpose 0 Harass press 0 Find out name of person who called you a wife beater o Is the info that needs to go before grand jury I Alternative sources to that information 0 Can person asking for info get this info from some other source wout having to ask press for information I Effect on the administration ofjustice 0 Without this information can justice be served 0 Can they bring an adequate case against defendant without information o Is the informationmaterials journalists have necessary to law enforcement s case o If granted then no need for the journalists to testify lf denied journalists can appeal I Motion to Quash I During appeal time don t have to go to jail O O O 0 When appeals fail journalist must testify or risk a contempt citation 0 Failure to comply leads to jail o Branzburg v Hayes I Combination of 3 cases I Reporter was sent out to Oakland to report on Black Panther party 0 Have a lot of civil rights movements Vietnam war lots of tension in country 0 BP 0 FBI considered a national terrorist organization 0 Investigating them o Dissenti 0 Reporter gets close to them and allowed to report on them and publishes articles in NYT TV reporter in Mass does the same thing with BP party Last reporter is reporting on drug use and making of hash and publishing these stories Once stories are published people and government are interested in how you got the information FBI called journalist and told him to act as an informant and journalist turns them down Government issued subpoena o Journalists had to appear before court and provide information they want Journalist subpoenaed b4 grand jury 0 GJ 0 Does government have adequate reason to charge someone with a crime 0 Group of citizens called to serve 0 Not regular trial I Prosecution shows evidence they have to endite person Violating freedom of press because ppl wont talk to them Journalists say they have a priviledge by freedom of press and not being an arm of government to not testify SC said there is no 1st amendment priviledge for journalists when subpoeneaed to testify before a grand jury No difference btw journalist and regular citizens 0 Have occupation where they have to gather info but doesn t make them higher than citizens to not appear in court Incidental that sources may stop talking to journalists if they testify Leaves open the possibility for states to offer protection for journalists through constitutions or legislative process Other states have priviledge in common law or constitution protecting journalists 0 LA has this ng Opinion 3 part test to force reporters to appear and give up information Must meet all 3 criteria When calling a reporter to appear before a grand jury to reveal confidences the government must 0 Show that there is probable cause to believe that the newsperson has information that is clearly relevant to a specific probable violation of law 0 Probable cause is a reason has to be a supported reason that the government believes journalist has this info I Did they publish article with info they want 0 Clearly relevant I Relevance of information the journalist has Demonstrate a compelling and overriding interest in the information Compellingoverriding interest 0 0 Cohen v O O I Used in test of strict scrutiny Demonstrate that the information sought cannot be obtained by alternate means less destructive of First Amendment rights Most go to lower courts and side with journalists Cowls Media Co Breach of K Cohen wins 700000 compensatory and punitive damages jury verdict Calls reporters up from 2 papers and tells them he has some information They meet and says he will give info on candidate as long as they keep his name confidential and not report his name Information wasn t as good as they thought Public records about an arrest candidate had about shoplifting items Charges were dropped because she was in shocked because death of her loved one Journalist publish story and use Dans name Dan is fired and sues for misrepresentation o Said they would keep his name confidential Breach of oral contract because said they would keep his name out of it Goes to lower courts and wins Minn Ct of Appeal Breach of K o Cohen s 200000 compensatory award affirmed Cohen s 500000 punitive award was reversed Didn t want to punish press because of moral obligation vs legal obligation Minn Sup Ct o Breach of contract and promissory estoppels Cohen s 200000 award reversed Supreme court said he shouldn t get anything Court elements of a contract are met but its not that simple Requirements for breach of contract Offer 0 quotl dan will give you this info if you promise not to publish a name Offer on the table Acceptance 0 Another party sees offer and accepts it Consideration Bargain for exchange What is given in exchange to make this contract value EX money is given in exchange for a house 0 O O Breach o If you don t fufill obligations in breach of contract Ct says it would be an injustice to enforce the contractpromise under estoppels o A 1st amendment violation US Supreme Court Promissory estoppels No 1st amendment violation to enforce Minn State law PE law of general applicability against the press I Case remanded to the Minn Sup Ct which enforces the promise under PE and reinstates Cohen s original compensatory award 200000 0 Promisssory estoppels I A promise which is expected to induce definite action by the promise and does induce the action is binding if injustice can be avoided only be enforcing the promise I You promising something in exchange for some action from someone else I Rely on you to fufill promise but you don t I Requirements for Promissory estoppels 0 Search warrant Was there a clear and definite promise Did the promisor intend to induce reliance on the promise Did such reliance occur to the promisee s detriment o Vulnerable to damages 0 Did damages occur Must the promise be enforced to prevent an injustice I Zurcher v Stanford Daily Group of protestors at Samford University in 70s Vietnam war going on Student protest turned violent and cops were injured Photogs didn t catch who actually hurt cops I Student paper did and published I Prosecutors got a search warrant to go into newsroom to confiscate notes pictures etc about the incident I Don t have time to have a hearing or motion if search warrant is issued police come to door with warrant in hair I Paper upset that cops raided office Cops found film but wasn t different than what was published in paper already I Said violated 1st and 4 h amendment rights by raiding office and taking materials said by principal I SC said 1st amendment doesn t protect you from having newsroom search Journalists weren t involved with hurting the police but do have information on the crim lssue search warrant on innocent 3rd party Doesn t violate freedom of press if cops come in with warrant to get your information Any search warrant must follow limitations placed on it by 4 h amendment 0 Such as probable cause 0 So cops don t go on fishing expiditions to see what they can find I After this ruling national press was upset so petitioned state govs and federal legislatures to get law 0 Privacy Protection Act of 1980 I Created to protect newsrooms and work products protected from searches by law enforcement I 2 categories of materials protected 0 Work products 0 Materials that convey information 0 Ex reporter s notes outtakes undeveloped file 0 Materials whose purpose to convey info to the public 0 Documentary materials 0 Materials upon which information is formally recorded 0 Ex government reports and manuscripts I Government must use a subpoena to get either work products or documentary materials I Exceptions 0 Work product exceptions 0 Where there is probable cause to believe the person who has the materials committed a crime related to them 0 Where immediate seizure is necessary to prevent death or serious harm to person 0 Documentary materials exceptions 0 Where there is reason to believe that the noptice associated with gaining a subpoena would result in destruction alteration or concealment of such materials Access to Government Federal freedom of information act Dopted by congree in 1966 Governs access to federal records Provides in general that records of the federal government There are 9 exemptions to the act I Exemptions do not require withholding they permit it O 0000 1 National security a Information that is classified or will hurt country Agency rules and practices a lntraagency information b Public isn t interested in when you can take safe breaks during work or how long breaks are i Mudane information so no reason to disclose ii If disclose info can be taxing on agency to make copies of all this stuff Specific statutory execptions a Certain statues that prohibit government from disclosing certain materials i Ex DMV aren t allowed to give anyone information connected to liscense Confidential business information a Secret formula for Coke lnternal memoranda a Simple questions about things and how the agency will run itself b Related Personnel or medical files a Boss annual evaluation of you cannot be released 7 Lawenforcement investigations a Possibility information will interfere with investigation 8 Banking reports 9 Information about oil and gas wells 0 Privacy Act of 1974 I Right to get your own file about yourself 0 Family Educational Rights and Privacy Act I Buckley Amendment I Relates to college kids I If a school gets federal funds they must keep certain academic records private 0 Driver s License Protection Act I Passed that all state DMVs must not disclose your DL related information picture address 55 number etc I States challenged this and said its unconstitutional but found constitutional
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