Obscenity ch9

LAW - Obscenity

Chapter 9

Obscenity and Indecency

Obscenity - not protected
Offensive and lacking any social value

Pornography - protected
Generic term for sexually explicit material

Indecency - protected
Less graphic and/or erotic than obscenity



Obscenity
1873 - Comstock Act - Suppression of obscene literature through mail
Comstock determined what was obscene.

The Hicklin Rule (pre-1957)
Obscene if it has tendency to deprave and corrupt those whose minds are open to such immoral influences

Roth-Memoirs Test (1957)
1. The dominant theme of the material taken as a whole must appeal to the prurient interest in sex.

2. The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters
3. The material is utterly without redeeming social value


The Miller Test (1973)

An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest

The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law

The work in question lacks serious literary, artistic, political or scientific value (SLAPS test)


Pope v. Illinois (1987)
Changed "average person" to "reasonable person."


OBSCENITY

Contemporary Obscenity Law


An Average Person
The material is to be judged not on personal values


Community Standards
In most jurisdictions, "community standards" are "state standards"


Patent Offensiveness
-Only hard core sexual materials meet this requirement
-Mere nudity is not patently offensive.


Serious Value
-Could someone, not does someone find literary, artistic, political or scientific value in the work?
-Work must be considered as a whole. . .not in part.



Variable Obscenity Statutes (Minors)

1968 Ginzburg v. New York - Supreme Court determined that "girlie" magazines that were legal to sell to adults COULD be restricted from being sold to minors.


Child Pornography
1982 - New York v. Ferber ruled that the Miller test does not apply to child pornography

The material need not appeal to the prurient interest of the average person

It is not required that the sexual conduct portrayed be patently offensive

The material at issue need not be considered as a whole



Child Pornography Prevention Act (1996)

1998 Child Online Protection Act adopted (second Congressional attempt)

2001 Child Internet Protection Act adopted (third Congressional attempt)

2004 Enforcement of Child Online Protection Act blocked by Supreme Court


Pandering

How the work is distributed. If it is displayed to appeal to the prurient interest (emphasizing eroticism rather than literary value) it is called pandering.



Privacy and Possession of Obscenity
Illegal to buy, sell, transport, or order obscenity.
Not illegal to have it in your home for private use.


Due Process and Prior Restraint

Publication and distribution of obscenity can be stopped beforehand or punished afterward.

Govt. has burden of proving obscenity, not creator

Cannot seize materials before they are ruled by judge to be obscene



Indecency



Indecency doesn't necessarily appeal to the prurient interest, so doesn't necessarily pass the Miller test.



Broadcasting



FCC v. Pacifica- (1978) George Carlin's 7 dirty words case. Restriction for profanity relies on children's access to the airwaves. Resulted in anti-indecency policy.

Court said words were not obscene. . but indecent. Pacifica warned but not fined. Appellate court overturned warning, Supreme Court reinstated warning

(5-4). Discussion about difference between obscene and indecent.


2008 - Supreme Court will hear case between Fox TV and FCC. Appellate court sided with Fox who was fined for Cher saying expletive (fuck) during award show. FCC enforcement bureau did not fine station. . .after many complaints, FCC overruled enforcement bureau and said it WAS illegal.


FCC declared ban on "fleeting expletive." Court said FCC deviated from relatively relaxed earlier policy on the one-time use of expletive on TV. Also noted fact that originally said it was not a problem.



Supreme Court grants cert in November, 2008. First case since Carlin on anti-indecency. Potential for self-censorship in fear of $325,000 fines will create burden of policing or monitoring all live broadcasts.



1990s - FCC got on indecency bandwagon. Broadcast bawdy humor and innuendo fined.



Howard Stern fined multiple times. Resulted in indecency guidelines in 2001



Indecent if: sexual or excretory organs or activities described AND is patently offensive to an average viewer or listener (as opposed to "reasonable" as in Miller.)



Basically - indecency is whatever the FCC says is indecent, at any given moment in time.



Supreme Court looking at the Cher indecency incident MAY indicate that there is clarification coming.



2006 Broadcast Decency Enforcement Act



Bush signed Act that raised fines from $32,500. . .to $325,000 per incident.



Tried to set "safe harbor" where kids won't hear. Courts can't agree on time or reason.



Telephone

Can only bar indecent speech as far as children accessing, but not restricting access by adults.



Cable Television



Self-regulating by offering kid friendly (family) packages.



Since cable is "invited into" the home, can be restricted less. Consumers always have the option of not purchasing cable.



Internet

Supreme Court consistently finds that internet requires similar protection to newspapers and print media. Legislators keep trying to regulate it.



CDA - Communications Decency Act. - 1996 Court said too vague too broad to restrict only indecent speech



Women and Violence



Courts have never found violence alone lacks First Amendment protection.



Some claim that violent and degrading portrayals of women should be illegal even if not obscene under typical definition. So far Courts of Appeal have declared such speech as protected.



Video Games



Some laws passed to protected kids from violence in video games. All restrictions found unconstitutional so far. Courts say restricting is job of the parents, not the courts.



V-chip

Method employed to allow parents to control viewing. Very low usage however.





Controlling Non Obscene Sexual Expression



Zoning Laws

Time, place and manner

Content - neutral (protecting community from crime and plunging property value)



Legal Test for Zoning Regulations:

A community cannot, under the guise of zoning, completely bar or even significantly reduce the number of adult bookstores, movie theaters or newsstands

The ordinance must be justified by showing that it furthers a substantial state interest

The ordinance must be narrowly drawn so as not to restrict more speech than is necessary





Postal Regulations

Protects consumers from unwanted sexual materials.



Display Laws

Must cover possibly indecent legal materials so kids can't see, or keep behind counter, or make store adults only.



Motion Pictures

Movie rating system. Self/Industry regulation. G, PG, PG-13, R and NC-17 (used to be X) These are registered trademarks, filmmakers can't use them. Can only be used by Motion Picture Association of America.



Recording Industry

Voluntary labeling. "Parental Advisory"



Video Games, Internet, Mobile Phones- all have voluntary controls

LAW: Finish ch 10 & 11

CH 10 (cont'd) NEWS GATHERING 

=========

REVIEW:

Nebraska Press Association - allowed people to access 'criminal' trials. First time a court has looked at a 

PE 1 - jury selection

PE 2 - the test that came out (pretrial)

concept of "a fair jury/trial" (Void Dire, etc)

Richman Newspapers

^flashcard these^

=========

Control of Courtroom

Contempt Power:

Judge is both judge and jury and has complete control over the punishment.

Civil Contempt - contempt is applied to get someone to do something

(such as: refusing to identify your source)

Person is held responsible for their own actions and can free themselves by complying with the court order. 

Criminal Contempt - used to punish disrespect for the court. Can be fine, jail or both. Usually done in view of the judge.

-

Limits on Contempt:

Congress has passed laws that limit use of the summary judgement power of federal judges.

The U.S. Supreme Court ruled that freedom of the press to comment on the judiciary must be protected except in those circumstances where the commentary presents a serious threat to the proper functioning of the legal process.

Dickinson Rule - Rule that requires all court orders, even those that appear to be unconstitutional and are later deemed to be unconstitutional by an appellate court, must be obeyed until they are overturned

==

==  News Sources

==

Protection of News Sources:

First Amendment Protection:

Supreme Court found there is NO First Amendment protection against revealing sources.

1972 - Branzburg v. Hayes

(when can you not tell 'who told you', can they make you tell?)

(You can't see it and protect yourself)

The U.S. Supreme Court ruled that the scope of protection varies depending upon:

• The type of proceeding (grand jury, criminal case, civil case)
• The appellate jurisdiction in which the case in question arises, and
• The nature of the information

-

Courts wil consider (based on test from dissenting opinion - Branzburg):

1. Is the info of certain relevance in the case and is there reason to believe reporter has specific information to advance interest?
2. Can the person who wants the information show there is no other source for the information?
3. Is there a compelling and overriding interest in the information

Most likely to compel source if journalist witness illegal act or behavior.

-

Constitutional Protection of News Sources

Civil Cases - courts are most likely to recognize right of a journalist to refuse to testify in a civil case

Criminal Cases - In these cases, courts must balance journalistic privilege with the Sixth Amendment right of the defendant to compel testimony.

Grand Jury Proceedings

Courts have routinely denoted a First Amendment privilege to withhold information from grand jury hearing

Anonymity and the Internet

Courts are split on forcing Internet Service Providers ISPs) to reveal the name of persons who post anonymous messages

-

STATE Protection

Legislative and Executive Protection of News Sources

Shield Laws ("I gave my word that I would not reveal them")

Their protect whether you tell them our not.. protects your source person.

State laws that protect journalist from revealing their sources.

Some states require there be a promise made for confidentiality

• TN does NOT require that promise.

Virtually every state has some protection for "journalists"

-

Who is a Journalist?

1998 - In re Madden

The 3rd U.S. Circuit Court of Appeals defined a journalist as someone who:

• is engaged in investigative reporting
• in gathering news
• possesses the intent at the beginning of the news-gathering process to disseminate this news to the public.

 -

TENNESSEE

(Protection of news sources)

State shield law applies unless:

###

-

Newsroom Searches

warranted search of a newsroom by law enforcement agency permitted if:

1. probable cause of a CRIMINAL
2. immediate seizure of such materials necessary to PREVENT the death of serious HARM
3. Information "relating to NATIONAL defense, classified information, or restricted data"

Privacy Protection Act of 1980

Restricts searches for "work product MATERIALS"

Less restriction on raw product (i.e. video tape) and easier to get access.

Adds the following:

A search warrant (I'm takin' it..now) may be used instead of a subpoena (you need to bring me this by tuesday) to obtain documentary materials.

-

How to respond to a Subpoena

1. Try to avoid the problem by not offering confidentiality unnecessarily
2. Discuss the matter with an editor
3. ###

-

Nonconfidential Information and Waiver of the Privilege

Tips for reporters on promising confidentiality:

Do not routinely promise conf#

-

The Failure to Keep a Promise

1992 - Cohen v. Cowles Media

The First Amendment ##

==

==   Access to Information

==

3 Laws reports count on for legal right to access of info

• Common Law
• Statutory Law (passed by legislators)
• Constitutional Law

we don't have access beyond what the public has

-

First Amendment Protection of News Gathering:

Journalists today increasingly are being sued for how they gather news

YOU CANNOT DO THESE TO GATHER NEWS:

• Trespass
• Harassment
• Fraud
• Misrepresentation

News Gathering & the Law (ch 10)

Dec 6 (Study Day) Law Study Session
Exam will be December 13 @ 1 PM




News Gathering & the Law

Journalist role in society is to present a NEUTRAL entity -
- gather news source
- protect news sources
- select information that public should hear (gatekeepers)

∏ What can't journalists share? Information dealing with National Security ∏

Potential Conflict:
1st amendment rigths vs 6th Amendment right of the accused.

Sixth Amendment (right to a fair trial)
"Amy's right NOT to hear how she killed Dr. Nichols"

Right to a fair trial with impartial jurors.


Shepard v. Maxwell 1966
[Accused of killing his wife]
Supreme Court said it was the responsibility of the court to protect fair trial rights of the defendant while still restricting the press as little as possible.

[after this case, courts banned cameras in the courtroom]

"Everyone was in their place...the women were in the kitchen" - Dr. Nichols


Establishing fair Juries: An Impartial Juror
The high court is willing to permit jury service by a person who possesses knowledge or has an opinion about a case, so long as:
1. The knowledge or opinions are NOT SO CLOSELY HELD that they cannot reasonably be put aside in face of evidence; and
2. The publicity surrounding the case is not so widespread and prejudicial as to render a potential juror's assurances of impartiality as unbelievable.


Bench-Bar-Press Guidelines
(Bench: Judge Bar: Lawyer Press: Journalist)
The purpose of these guidelines is is:
1. Tell law enforcement officers what kind of info about a criminal suspect and a crime can be released and published with little danger of harm to the trial process, and
2. Inform journalists that publication of certain kinds of information about a case can be harmful to the trial process.



EX: Mad Dog Irvin (Irvin v. Dowd)



Traditional Judicial Remedies
ways to control the jury

Void Dire - set of questions to selected jurors
(most common remedy to) keep the jury pool untainted
[Such as keeping Dr. Nichols from being a juror.]

Challenge for Cause -
"I don't want her BECAUSE she teaches media law

Preemptory challenges - just because
"they don't have to say why they don't want me, they just don't want me"

Catch: cannot be eliminated because of race or gender

Change of Venue
(moving the trial to Nashville)

Change of Venirement - all the jurors are brought from a different county
They go get jurors from Wilson county

Continuance - granting additional time so the excitement/publicity can die down.

Severance - separating one murder into two cases, defendant lawyers like this to create doubt.

Admonition to the Jury -
"UnRinging the bell" the judge says not to acknowledge the statement. Pretend it wasn't blurted out.

Sequestration of the Jury
(you can't go online, view media?)
only used in extreme cases



Controlling Conduct in Court
1935 "Lindburgh Baby" case.
[lot of photographs ? ]
800 journalists from around the world constantly disrupted trial

1937 lawyers (ABA) proposed banning cameras from courtrooms

1962 - "okay ONE camera" Estes v. Texas. Video cameras did live shots for newscasts with POOL COVERAGE (share one feed) Supreme Court 5-4 said denied him a fair trial..[pretty weak decision]

1981 - Chandler v. Florida - the mere presence of cameras in the courtroom does not prejudice a defendant's right to a fair trial. Gave states the right to make own decisions about cameras in state courts.

2011- by now, 43 states allow cameras, 7 states restrict cameras to judge only hearings (no juries). Many states offer live web casting of proceedings and others provide live video coverage on local stations.

"They [cameras] turn people into idiots" - Dr. Nichols




Controlling Prejudicial Publicity:
Restraints imposed on News Sources

[The time that journalists are most likely to be restricted in a case]

Restrictive Orders - also known as "gag orders" to stop those involved in a case from making public comments

[Gag orders follow strict scrutiny (gov't interest & narrowly tailored). "Gag anyone from talking about that specific info"


Restrictive Orders Aimed at Participants
Not uncommon in high profile cases



Restrictive Orders Aimed at the Press:

1976 - Nebraska Press Association v. Stuart
The judge in a sensational murder trial issued a restrictive gag order.
U.S. Supreme Court ruled this order was an unconstitutional prior restraint on the press.

1978 Landmark Communications v. Virginia - Supreme Court said media could not be punished for publishing truthful information about the judicial system without providing a compelling government need. [Leaked info from someone not gaged can still be printed, protected]

1979 Smith v. Daily Mail Publishing Co. Accurate reporting of the conduct of a public official should be completely protected.

^^^ PRE-TRIAL ^^^ everything was about pretrial




Access to Courtroom: Access to Trials
In Nebraska Press Association (1976) Supreme Court justice said one alternative to pretrial publicly is to CLOSE courtroom.

Many courts started closing trials.

1980 Richmond Newspapers v. Virginia - Supreme Court said press and public have a qualified constitutional right of access to trials, pretrial hearings and jury selection process.

"A CRIMINAL case can be closed only if the state interest in a fair trial overrides the rights of the press and public to attend."

1982 Glove Newspaper Co. v. Superior Court - testimony of minors in sex offense case is not a strong enough state interest in closer [only if there's a compelling need.. and only close off that section where the child is testifying]

To close Criminal Trials {this is Globe]
###


Access to Courtrooms: Access to Jury Selection
Press-Enterprise I and II v. Riverside County Superior Court.

1984 - PE I incorporated jury selection into open proceedings category

[there are times to preserve the rights of the jurors. like asking the jury how many women had been sexually assaulted..who would admit it in front of the press?!]

1. Judge must specify an overriding interest in closure
2. No alternative measures other than closure
3. Judge must document, in writing, why closure is necessary
4. Closure can last only as long as necessary to meet the need for closure


1986 - PE II - Supreme Court held that there is a 1st Amendment right of access to pretrial proceedings.

(PE I & PE II)
PE II TEST:

1. Is there a traditional right of access?
historically - a history of openness
function ally - openness serves democratic process
2. Is the right of access overcome by some other important right?
(privacy of jurors, 6th amendment right of defendant)
a. overriding interest in closure
b. closure narrowly tailored to serve that interest
c. ###

( see notes )





Access to Courtrooms: Access to Court Records

Press enterprise cases (PE) included access to transcripts and commonly seen as establishing a First Amendment right of access to records.

RECORDS are subject to PE test.

Records CAN be sealed if they are not entered into evidence. Very difficult to restrain access if admitted as evidence. They are then a part of the proceedings.

Still working on right to COPY tapes or documents. Some courts feel they are more prejudicial than paper documents.

Finish Commercial / Start Obscenity

Media Law - Thursday
(finish Commercial Speech, get into Obscenity law
"Read and in your head" by Tuesday! Test is Thursday

MAKE SURE YOU UNDERSTAND THE CENTRAL HUDSON the 4 part test came from this case..


Competitor Remedies
Lanham Act: Section 43(a) allows for federal civil lawsuits based upon both false advertising and false endorsements. (1946)
[ allows ME to stop HER.. not really a gov't shutdown]
Not only protects trademarks. . but also false advertising.

Accurate and fair comparative ads are legal and encouraged.
1. truthful
2. objective (able to be substantiated)
3. reliable independent testing services
4. results of the substantiation made available if necessary
5. present comparison fairly
6. avoid knocking competitors business practices and stick to product comparison

Racketeering

RICO


OTHER FEDERAL REGULATIONS

Children's Programming:

1990 Children's Television Act
limits commercial time during kid tv

2006 added rule that prevents website addresses in programming if website sells a product. Website can be displayed only if:
1. offers program related content
2. not for commercial purpose
3. clearly labeled for commercial and non-commercial menus
4. not used for e-commerce


Product Based Programming
Is only an ad if there is little distinction between ad and commercial.
Requires a "throw" to commercial break so kids know what's coming is a commercial


Sponsor Identification

Broadcast Advertising

Advertising time for regular programming is not restricted. FCC claims market will regulate itself.

Cigarette advertising is banned, liquor advertising is regulated.

Programming produced elsewhere and given to stations must be identified

Drug advertising regulated. Drug ads must:
1. include toll free number for more information
2. state that detailed information brochures available
3. state that pharmacists can supply info
4. include website address



##SKIPPED##
Personal Data

Principles of Fair Information Practices - to control personal data:

Notice - can't collect data before disclosing policy of distribution

Choice - consumers must be given options on how info used

Access - consumers need access to view and check accuracy of personal data

Security - collectors must take reasonable steps to ensure safety of info
## ^^^ ##


Lotteries and Contests

Lotteries - Three Elements:
1. Prize
2. Chance (luck, not skill, determines the winner)
3. Consideration (effort or expense required of participant)

Contests
Can conduct and advertise contests if all three lottery elements NOT present. If only TWO elements present, it is a contest.
"No Purchase Nessicary"

Money
Government can control how money pictured in advertising


MEDIA RIGHT TO REFUSE ADVERTISING
The media have a constitutional right to refuse advertising

***Except Policital Ads: Section 312!!*** or 315...


SELF-REGULATION
Most effective way to regulate advertising is self-regulation.


What gives commercial speech protection in the first amendment?



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=======
OBSCENITY


Obscenity - not protected
OFFENSIVE and lacking and social value
"so what is offensive? whatever the court says it is"

Pornography - protected
generic term for sexually explicit material

Indecency - protected
less graphic and/or erotic than obscenity
"Indecency doesn't really involve any "action" for a lack of a better term" - Dr. Nichols
More Imagery

Obscenity is a STATE law!

1873 - Comstock Act - Suppression of obscene literature through mail. Comstock determined what was obscene.
[1st obcitity law that was passed...national, hmm]

The Hicklin Rule (pre-1957) - a statement that said, Obscene if it has tendency to deprave and corrupt those whose minds are open to such immoral influences.
[hard to enforce]

Roth-Memoirs Test (1957)
1. the dominate theme of the material taken as a whole must appeal to the prurient interest in sex.
2. the material is patently offensive because it affronts CONTEMPORARY COMMUNITY STANDARDS relating to the description or representation of sexual matters.
3. The material is UTTERLY WITHOUT REDEEMABLE SOCIAL VALUE.

The Miller Test (1973)
An average person, applying contemporary local community standards, finds the work, taken as a whole, appeals to prurient interest.

The work depicts in a 'patently offensive" [actually disturbing, "with no stars..three of them to be exact"] way sexual conduct specifically defined by applicable state law

The work in question lacks serious Literary, artistic, political, or scientific value (SLAPS test)

Pope v. Illinois (1987)
Changed "average person" to "reasonable person."
[still called the miller test, despite this little change]

"There are way more offensive magazines than PlayBoy..AssMasters? You can do the math" - Dr. Nichols Patenly offensive, where everyone is like "really? uh! who wants to see that?!"

###

SLAPS TEST
Serious Value
'Could' someone (not does) ###

Minors
1968 Ginzburg v. New York
Supreme Court determined that "girlie" magazines that were legal to sell to adults COULD be restricting from being sold to minors.
+ Changed "average person" to "appeals to purvian intrest of a minor"... protect the CHILLLLREN

1982 - New York v. Ferber
Ruled that the Miller test does not apply to child pornography
[child porn is not protected]


Indecency:
Is whatever the FCC says is indecent, at any given moment in time.

Indecency doesn't necessarily appeal to the prurient interest, so doesn't necessarily pass the Miller test.

Political Speech cont.

Media Law - Nov 1

(missed Tuesday)

Political Speech: Regulation of Political Broadcasting

** Section 315 **

If one federal candidate gets time (on air), then all legally qualified candidates get time…well, at least equal opportunity (not specifically time)

1927 and 1934 Communications Act

         Equal Opportunities Rule (Sec. 315 of 1934 Act)

                  -if one legally qualified federal candidate gets time, all legally qualified federal candidates get time

                   

                  Legally qualified: 

                           1.  have publicly announced  intention to run

                           2.  candidate meets qualifications for the office

                           3.  must qualify for a place on the ballot or commit to running as a write in candidate

         Reasonable Access  (Sec. 312)

                  can’t deny federal candidates access to airwaves

Does NOT trigger equal opportunities rule if:

        

         bonafide:     A.  newscast

                           B.  news story

                           C.  news documentary

                                    1.  is program regularly scheduled

                                    2.  broadcasters/ journalists control content

                                    3.  content and format based on journalistic judgment, not advancing political career

                                    4.  selection of persons to appear based on newsworthiness

                           D.  on the spot coverage of news event

CABLE companies are not responsible, it's CNN that's the responsible.

"it's a big game.. it's a big game…but it's OUR big game…" - Dr. Mary Nichols

Limits on Broadcaster Censorship

         -Broadcast station- no control over content of political programming

-Reject  programming if evidence of a “clear and present danger”

         -Broadcasters not held responsible for libel

Rates and Sponsor ID

         Can only charge regular rates or lowest rate

         VNR (Video News Release) must identify sponsor

Reasonable Access

         Sec 312 requires broadcasters to provide access to airwaves.                  

                  -just for federal candidates, not state or local.

Fairness Doctrine

         Repealed in 1987   --Required broadcasters to:

                  1.  Present public issues

                  2.  Present opposing/contrasting viewpoints

         Zapple Rule

                  -part of Fairness Doctrine, only part still held. 

                  -If one supporter of a candidate pays for airtime, supporters of opposing candidates must be allowed

                  -governs advertising not including candidate’s voice or picture.

Personal Attacks and political Editorials

                  2000 - courts determined no longer in effect.

                  Still in effect – non-commercial educational channels can’t support candidates.

Lobbying

         The right to petition the government.

         1995 Lobbying Disclosure Act – must disclose if gifts received

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==

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Commercial Speech

COMMERCIAL SPEECH

1^st Amendment and Advertising

Why is this harder? It involves MONEY.

1942 -  Valentine v. Chrestensen  

Supreme Court determined no protection for “purely commercial speech”

+ Since it's not protected, it better be true.

(+ or illegal)

1976 – Virginia State Bd of Pharmacy v. Virginia Citizens Consumer Council . 

 + They wanted access to the cost of drugs, advertise prices.

Supreme Court said pure commercial speech DOES have constitutional protection.

+ You can't "restrain" commercial speech.

The Commercial Speech Doctrine

 + "The process of giving commercial speech, first amendment protection"

Doctrine “born” with Valentine v Christensen case in 1942.

1964 – Times v. Sullivan 

Court determined advertising did have some level of 1^st Amendment Protection.  That political speech should be protected even if it is paid for

+ It was purchased... 

1975 – Bigelow v. Virginia – determined advertising abortion services legal

1976 - Virginia State Bd of Pharmacy v. Virginia Citizens Consumer Council   FINALLY addressed purely commercial speech.  Case involved advertising of legal drugs. 

COMMERCIAL SPEECH DOCTRINE: Truthful and non-misleading advertising about lawful goods and services receives an intermediate level of First Amendment protection.

Political Speech                                                Commercial Speech

Falsehood in political speech part of                        Falsehoods not tolerated and can

marketplace of ideas.  Truth will                         be constitutionally banned

immerge

                                                                        Cannot promote illegal products

No prior restraint without                                    Can restrain speech for any “important”

“compelling” govt. interest                                    reason (e.g. misleading information)

Cannot compel speech                                    Can require disclaimers,  warnings and

                                                                        other information to clarify claims made in

                                                                        commercial speech

                                                                        Even truthful advertising may be prohibited

More opinion based – not                                     Can be verified – so less need to tolerate

easily verified                                                            misleading statements.

Four-Part Test (from Hudson Electric case)

            (To determine constitutionality of regulating commercial speech.)

            1.  Eligible for 1^st Amendment protection?

            2.  Substantial  government interest in regulation?

            3.  If yes to both  – does the regulation directly advance interest

            4.  Is the regulation sufficiently narrow.

1.  Eligible for protection

        

A.  Were the words paid for;

B.  Did they reference a specific product

C.  Were they economically motivated

FTC Definition of False or Deceptive Advertising

1.  Must be likely to mislead or to confuse the consumer.    

2.  Must be from the perspective of a “reasonable consumer.”

3.  Must be “material” to influence the purchasing decision.

2003 – Can-Spam Act – makes it illegal to send commercial e-mail messages with the intent to deceive recipients about who is sending the message.

2.  Legitimate Government Regulatory Interest

   Government has to show “legitimate” or “substantial” interest in regulation.

3.  Direct Advancement of Government Interest 

It’s one thing to say there is an interest in regulating. . .quite another to create regulation that directly advances that interest.

4.  Narrowly drawn ban

Restriction must affect ONLY specific advertising

Political Speech - part 1

LAW - Political Speech chapter

Teacher: She's still not feeling well..

Coming tuesday:
CASE TO BRIEF: "Citizens United"


Expanding Corporate Rights to Speak

1978 - First National Bank of Boston v. Bellotti
Bank wanted to oppose state income tax. Bellotti (MASS Attorney general) said income tax not a direct impact on banking.
+ Supreme Court says citizens have a right to receive political speech by corporations.
+ Bank has right to express an opinion, public has right to hear it.
+ Cooperations cannot "plead the fifth"

1980 - Consolidated Edison Co. of NY, Inc. v. Public Service Commission of NY.
Laws restricting corporations must be content neutral. In other words, can't restrict just political speech.



Compelled Speech:

Pacific G and E v. Public Utilities Commission of CA -
1986 - Electrical company (Pacific Gas & Electric)
"they didn't even know what green meant..it was just a color"

Supreme Court 5-3 decision said that forcing a utility to carry unwanted consumer messages was unconstitutional.


Legal Restraints on Corporate Speech during elections

In Belotti the courts specifically said that corporations can speak about public issues - but that does NOT include participation in a political campaign.



1971 - Federal Election Campaign Act
Contributions - funds given to a candidate or campaign committee
Expenditures - funds spent independently of candidate on their behalf
Corporations are not permitted to make either contributions or expenditures for candidates running for FEDERAL office.

Profit Making Corporations:
Laws restricting speech must show
"compelling interest and narrowly tailored"

Prohibited Contributions and Expenditures:

gifts of money, advertising, securities, discounts, membership lists, use of facilities, broadcast time, and services to the candidates and their campaigns.

2006 - FEC (Federal Election Commission

-incidental use of business computers for voluntary internet political activities is ok. . .

2010 - Citizens United - FEC
cooperations can buy ads for political candidates.


PRESS EXEMPTION
To determine is press exemption applies:
- Is it a bonafide press entity. Is there editorial control.
- Is entity owned by political party, candidate, or political committee
-Is entity engaging in legitimate press function.



====

So on tuesday: Read the chapter

Exam 2 Taken Today

Professor Nichols was out for the test, due to surgery.

Class Canceled? Confusion

Note said canceled...but we were supposed to turn in our briefs upstairs..

Due to confusion, no one will be penalized. She won't count anyone absent and picked up the briefs later.

Copyright: Licensing

Media Law

Copyright

Protection

Three parts to notice

• copyright or © 
• date
• full name of owner

© Copyright, 2012 Kyle Matthew Jones

To protect your copyright:

• Post the copyright notice
• send two copies with the proper forms and fee to US copyright office
• register within three months of publication

USING COPYRIGHTS

Licensing

• Blanket license - you pay a certain amount every year
• Performance license - make money using someone else's work (based on the contract)
• Master Use license
• Compulsory license - you keep track and pay royalties on it / a "pay as you play" license  (i.e. Ringtones)

+ Moral Rights - international copyright law, the Burnn Convention

Ah ….Bobby…Bobby….

"He should be sitting in this class…"

INFRINGEMENT

Plaintiff must prove:

• Ownership of copyright
• violation of that ownership by defendant
• that defendant had access (the reason artists won't listen to others demos to keep them from saying you stop their sound/music)
• substantial similarity

"When they were writing the constitution…they weren't thinking about embedded video" - Dr. Mary N.

DAMAGES:

Types of infringement:

• Direct infringement
• Contribution Infringement
• Vicarious infringement

Damages Awards:

Statutory - must prove loss of income.

Punitive Damages - actual malice or intentional harm.

FAIR-USE

1. The purpose and character of the use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion
4. The effect of the use on the potential market for the copyrighted work.

UNFAIR COMPETITION

Misappropriation - Using someone else's PRODUCT as your OWN

Trademarks - A word, name or symbol, used to identify a product.  "Give me a Kleenex…oh would you like a Puffs instead"

Service marks - Associate a product with a specific service.

Registration - ® According to Lanham Trademark Act, this trademark is registered

™ / SM means Trademark/Servicemark is Pending.

"Finger-licking good" can be service marked

They have to be unique enough to be different

Registration must be renewed every ten years

Parody - just making fun of something

Satire - draw attention back to themselves, taking their work and turning it into something else

One Back-up copy for yourself is allowed

Amount and substantiality of the work

Weather you're taking the "meat" of it.

Inherently Distinctive Marks - to be registered a mark has to be distinctive

Infringement - infringement of trademark is thought to confuse the consumer

Dilution - Continued use of similar trademark will dilute the strength of Trademark

Abandonment - A trademark lasts as long as it is being used

Trademarks:

"If I asked you how many of you have tried coke, most of you would think of a soft drink…i sure hope." 

** DUE THURSDAY (right after fall break)  Read & Brief the Case she emailed us**

Copyright

Libel, Invasion of Privacy

Need to know the differences!

and test also covers copyright.

"In Libel law a private person has to prove what level of fault? Negligence..but if you want punitive damages (punishment) then you have to prove actual malice..even a private person)

Copyright

Part of the Constitution BEFORE the First Amendment was passed.

Article 1, Section 8

Intellectual property recognized by Constitution: Inventions, Writings

Copyrightable Works

"original works of authorship fixed in any tangible form of expression…from which they can be perceived, reproduced, or otherwise communicated."

Ideas cannot be copyrighted…has to be TANGIBLE!

allows creatives to maintain control of it.

Six Rights under Copyright Law

• right of reproduction of the work
• right of preparation of derivative works
• right of public distribution of the work
• right of public performance of the work
• right of public display of the work
• right of public digital performance of a sound recording

Materials that can be copyrighted include:

Literary or musical works

Dramatic works, including accompanying music

Pantomimes and choreographic works

pictorial, graphics and sculptural works

motion pictures

sound records

"There's only so many letters in the alphabet--like what? 24 or 26?"

in discussing copyrights and slogans

###

Materials that cannot be copyrighted included:

Facts:

News Events

Telephone books and databases

Collective works

Derivative Work

OWNERSHIP

• Author
• Joint ownership   (split equally)
• work for hire  (you sign off the rights and the company owns it)
• freelance (you record it and they buy it…I still own the footage)
• government ownership
• states have limited right to copyright documents

Terms of Protection

Works created BEFORE January 1, 1978

• protected by copyright for 95 years

Works created AFTER 1978

• protected for life of the author or creative plus 70 

Joint Ownership

• protected for life of the last living creator plus 70 years

Works for hire

• protected for 95 years after publication

Business works

• protected for 120 years from creation or 95 years from date of publication

Privacy, Ethics, Laws

Differences between libel and invasion of privacy << know them!!

Public records are not invasion of privacy, no matter how long ago the record was..recorded.

Retrospectives: if you're gonna dredge up old news..there better be a good public interest to justify it.

(under revealing personal private facts)

Offensive Material
* If it is determined private facts received publicity, a court then asks:

1. Is the material offensive to a reasonable person, not someone who is overly sensitive?

2. Is the published material of legitimate public concern?
​What is a legitimate public concern?
​a. How much public interest or importance is there in the material?
​b. How deeply do these facts intrude into an individual’s privacy?
​c. How public or private is the individual in the story?




Ethics and Privacy
Ethics Code of the Society for Professional Journalists (SPJ):
​“Recognize that gathering and reporting information may cause harm and ​discomfort. Pursuit of the news is not a license for arrogance.”
​Journalists should “show good taste,” and “avoid pandering to lurid curiosity.”

Recounting the Past
* Two kinds of lawsuits arise about the past:

​1. A news story, book or TV documentary that simply recounts the past

​2. “Where they are now” stories; pushes beyond history

Private Facts on the Internet
​The disclosure of private facts on the Internet is treated by the courts in the same
​ way as publication in a newspaper

"I could just dream..I don't care if it was a beach or a mental institution!"


3. Intrusion
(placing yourself into someone else's business)
Taking pictures from street of man beating his wife..(so hypothetical)
​-Trespass
​-Eavesdropping to overhear a conversation
​-Gathering personal information from an individual’s private records (a biggie is medical records)
​-Using a telephoto lens

Child star, growing up and getting busted for crack & drugs:
"Is he intentionally back in the news? No, he's just an idiot"



No Privacy in Public
​-There is no expectation of privacy in public
​-Anything visible or audible by any person in the vicinity is public, not private
​-No expectation of privacy in places where people gather

Hidden Recording Devices

​Ethical guidelines for when to use hidden recording devices:
​-Information is of profound importance
​​-All other alternatives exhausted
​​-Apply excellence needed to pursue the story fully
​​-Harm prevented outweighs harm caused by the deception
​-Journalists involved have conducted a meaningful, collaborative and ​ deliberative decision to justify deception

TN – One person must know about recording



Publication of Information Obtained Illegally

​Journalists can use illegally gathered material given them

​Journalists cannot use information they have obtained illegally

Intrusion and the Internet
​No expectation of privacy when information voluntarily made accessible




4. False Light Privacy
​Made public
​About the plaintiff
​Substantially false

A woman was walking out of a funhouse and a photographer took a picture.. it wasn't libel because that's what she looked like.. but it was offensive to a reasonable person & totally humiliated.

Illegal to publicize material that places an individual in a false light if:

1. offensive to a reasonable person (embarrassment is enough) and

2. The publisher of the material was at fault when the publication was made

In rules of journalism & photography:
"Yeah, I'd be careful doing any 'Hooker in High school' stories.."


Comparisons to libel

​False light and Libel both require level of falsity
​Libel must damage reputation
​False light can merely cause embarrassment/humiliation

Distortion:

Most common false light claim against media.
​information is omitted OR
​information is used out of context


Fictionalization
​The purposeful distortion of the truth for dramatic purposes

Minor Falsehoods

* Most false light cases result from:

​Simple editing or writing errors, and/or

​Misuse of photographs and video

Obvious falsehoods
​Hard to win if comment is obviously false


The Fault Requirement
​Plaintiffs required to prove actual malice in false light cases involving issues of public importance.


DEFENSES (used by the media):

First Amendment - right to publish information of public interest.

newsworthiness

consent – implied/explicit


(Truth is not always a defense in a false light case)


5. Emotional Distress and Personal Injury:

New area beyond defamation and invasion of privacy. Not tested.

courts have stated that plaintiffs can claim this:
​. . .when another’s conduct is “so outrageous in character and extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Intentional Infliction of emotional distress. Can possibly prove intention harm.​-conduct was intentional or reckless
​-conduct was extreme and outrageous
​-conduct caused the plaintiff emotional distress
​-emotional distress was severe

Supreme Court requires for a claim of Intentional infliction of emotional distress:
​1. that the information be stated as fact, not opinion
​2. that it is a false statement of fact
​3. that the person writing or making the statement knew it was ​false, or exhibited reckless disregard for the truth or falsity ​of the material.

In other words. . .now, even for Emotional distress must demonstrate actual malice.

Fictionalization
Time (Life Magazine) v. Hill

Absolute Privilege & Qualified Privilege

Absolute Privilege - the info was presented in a protected environment. "They heard me (falsely) accuse the defendant of being the murderer" You can reported because you were in the context of an official legal proceeding: during a case in a courtroom.

Qualified Privilege: Reporting on anything that happens in a legal proceeding. (but can't editorialize)

Neutral Reportage: a usually reliable source screws up.

Right of Reply:
what kind of access does a person have to replay to Oprah's negative comment about you.

Privacy

LAW

CLASS EXAMPLE:
"Oh it was full of snark"


INVASION OF PRIVACY

​Libel - must be false/must damage reputation
​Privacy – not necessarily false and can protect feelings

4 Categories of Invasion of Privacy

​1. Appropriation/Commercialization
(stealing my face to promote their product)

​2. Revealing Personal private facts
​
​3. Intrusion
- trespassing, spying on somebody on the farm

​4. False Light
- has to be primarily/substantially false, look like it's false, hold you up to some humiliation because of its interpretation



1. Appropriation/Commercialization
Using an individual’s name or likeness for commercial /trade purposes without consent

Two rights involved:
1. Right to Privacy –​a personal right

2. Right of Publicity – a property right – protects economic value of name or likeness
"we can take our own pictures and make our own money"

Video/Photo issues: Individuals? not so much but Disneyland or Elvis

News and Information Exception
​Individuals cannot sue for appropriation in a news story

Booth Rule
The use of a person’s name or likeness in an advertisement for a media product is usually not regarded as an appropriation if the name or likeness has been or will be part of the content.

"You can buy anything" Pay for the rights.

Consent as a Defense
​Written consent is generally uncontestable

​Oral consent does not offer the same protection; it can be easily contested

When Consent Won’t Work
​1. Consent today may not be valid in the distant future
​2. Some persons (minors, wards of the state) cannot give consent
​3. Consent to use a photograph does not apply if image is altered or changed

Life After Death
​The right to privacy is a personal right that dies with the individual
​Several states have laws stating a right to publicity may live on after death




2. Revealing Personal Private Facts

​-Truth is not a factor
​​damages are not lessened by retraction (can’t take back embarrassment)
"She gave me a D on that paper..i'm gonna print out these fliers that reveals that she has AIDS"

​-Easier to prove embarrassment than actual damage to reputation


It is illegal to publicize private information if facts:
​-Would be highly offensive to a reasonable person,
​-Are private, and
​-Not of legitimate public concern
​
It's not illegal to reveal a rape victim, but it is generally not shown/told.

Private facts –
​not known to the public
​not public record
​not precious revealed by person
​not taking place in public
​not in view of public
​
Can report most anything that happens or is seen in public.

Publicity in privacy law differs from publication in libel law
​Publicity—communication of information to a large number of people
​Publication—the communication of information to a single third party

Turner v Dolcefino Discussion

Begun class by picking apart a case dealing with businesses as persons / public figures.

Can businesses sue for libel? Yes they can.
Can a business libel me? sure, absolutely
because their considered public figures under the law


Businesses as Public Figures- businesses can be considered "public figures" for the purposes of a libel action. 

-did business use a highly unusual advertising or promotional campaign to draw attention to itself. 
-is business regulated by the government 
-was the libelous comment about a matter of public concern 


"Things that can be true" but still hurt your reputation
Intentional Infliction of Emotional Distress

Ex. Jerry
it had a lower burden of proof...had to prove negligence
Supreme Court overturned the decision - they determined that IIED needed to prove actual malice.
The case put three new wrappers on actual malice

Turner .v "Dolcefino"

look for the law suit -

evidence / facts:

Mayor brought case

1991

attempted Insurance swindle

$6.5 million

Time suspicious activities
Buying cars with big insurance policies


what fault does he have to prove?
Falsity <> actual malice

Publication -
Identification - 
Defamatory - 
Falsity - 
Fault - (libel by implication)

how can the media defend themselves against the charges
 must show actual malice because Turner was a public official and public figure,

we presented what we saw as the truth, prove us wrong. "we never called him a criminal" -- libel per se