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?



=======
=======
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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===

==

=

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