Media Law Lessons


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Media Law Lessons

  1. 1. Media Law & Legal Resources<br />Test 1: Intro to the Law, Part I<br />
  2. 2. Housekeeping<br />This class meets every day for six weeks.<br />There is a considerable amount of reading.<br />There is no memorization – but a lot of analysis.<br />I expect a lot out of all my students.<br />I also teach this class through independent study.<br />I am offering you the opportunity to take the independent study course, but still attend lectures.<br />
  3. 3. Speaking Law<br />Lawyers (including judges, legislators, and lobbyists) pay good money to make sure they can make good money off of you not understanding the law.<br />Laws will never be easy to find.<br />Laws will never be easy to read.<br />Laws will never be easy to interpret.<br />This class can make it easier.<br />
  4. 4. American Civics 101: Federalism<br />
  5. 5. Preemption: If there is a conflict between a state and a federal law, the federal law wins.<br />Both laws are satisfied if the state law is satisfied, thus there is not a conflict.<br />The federal law can be violated even if the state law is satisfied, thus there is a conflict.<br />
  6. 6. Federal<br />State<br />
  7. 7. Federal<br />
  8. 8. State<br />
  9. 9. Reading a Rule<br />Identify who the rule regulates.<br />The speed limit is 55 mph.<br />Identify who the rule protects.<br />The speed limit is 35 mph during school hours.<br />Identify what the rule demands/prohibits.<br />No left turn.<br />Yield.<br />One Way.<br />Identify unclear language.<br />
  10. 10. Reading a Rule (cont.)<br />Identify unclear language.<br />Officers may ticket cars in the carpool lane with fewer than three passengers.<br />Is a truck a car?<br />Is the driver a passenger?<br />Are animals passengers?<br />MAY<br />The property is the finder’s if the real owner is not found in 30 days.<br />When does the 30 days start?<br />What qualifies the “real owner”?<br />Who, if anyone, has to look for the real owner?<br />
  11. 11. Reading a Case<br />Criminal Case (Prosecution v. Defendant)<br />Prosecution<br />State or Attorney General<br />Government official trying to prove legal violation<br />Defendant<br />Party trying to refuteprosecution’s assertions<br />Not necessarily asserting innocence<br />Verdict is guilty/not guilty NOT guilty/innocent<br />
  12. 12. Reading a Case (Cont.)<br />Civil Case (Plaintiff v. Defendant)<br />Plaintiff<br />Party who has been harmed<br />Trying to prove the other party is responsible for the harm<br />And trying to prove the other party is liable for the damage caused<br />Defendant<br />Party trying to refute plaintiff’s assertions<br />May refute either or both the responsibility or the liability<br />
  13. 13. Reading a Case (Cont.)<br />Identify the parties<br />Who is suing whom?<br />Names, occupations, relationships, etc.<br />Identify the problems<br />What happened?<br />Make sure these are facts.<br />If the stories are different, tell them all.<br />Identify the analysis<br />What rules did the court use?<br />Identify the analysis (cont.)<br />What policies did the court invoke (e.g. equity)?<br />What history did the court rely on?<br />Identify the rule<br />What did the court hold?<br /> What did the court decide?<br />Who won?<br />Who lost?<br />
  14. 14. Reading a Case (Cont.)<br />It’s important to know where the case came from.<br />Different courts have different levels of authority over other courts.<br />
  15. 15. Reading a Case (Cont.)<br />It’s important to know who is talking in the case.<br />Cases have different sections.<br />
  16. 16. Interpreting the Law<br />Technically, just reading a rule or a case is interpreting the law.<br />But, usually, you are not interpreting one law unless another situation depends on the meaning.<br />Thus, interpretation is only accomplished through application.<br />Application is accomplished via analogy.<br />Cat: Dog :: Kitten: Puppy<br />Tea: Kettle :: Coffee: Pot<br />Comparing, differentiating/distinguishing.<br />
  17. 17. Legal Analogy 1<br />The court says the state cannot set different speed limits for blue cars and yellow cars because “neither color car is inherently more or less dangerous – they both stop at the same rate.”<br />What would the court say about setting different speed limits for commercial vehicles (buses, delivery trucks, etc.) and personal vehicles?<br />What about different speed limits for larger personal vehicles and smaller personal vehicles?<br />What about for convertibles?<br />
  18. 18. Legal Analogy 2<br />The court says Jane Roe had to pay the fine because she crossed against the light during a non-emergency situation: “Having a baby takes hours. She could have waited for the light.”<br />What would the court say about John Doe crossing against the light because his child dashed out into the road?<br />What if his child were already safely across?<br />What if it were his dog? <br />A stray dog?<br />
  19. 19. When to Call the Professionals<br />Here’s what you, personally, can do now when faced with a legal question or situation.<br />Find the pertinent rules.<br />Determine what they mean.<br />Determine whether a person threatening to sue you has a credible case.<br />Here’s what you, personally, should do next.<br />Have a meaningful conversation with a licensed attorney.<br />Your knowledge will limit their power.<br />
  20. 20. Test 1: Intro to the Law, Part II<br />First Amendment<br />
  21. 21. The First Amendment<br />Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; orabridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the Government for a redress of grievances.<br />
  22. 22. Reading the First Amendment<br />Whom does the First Amendment regulate?<br />Congress<br />Whom does the First Amendment protect?<br />It doesn’t say.<br />What does the First Amendment prohibit?<br />The making of laws that abridge the freedom of speech, or of the press.<br />What might be unclear?<br />Congress<br />Abridge<br />Freedom of speech or of the press<br />Whose freedom<br />
  23. 23. “Congress” Defined<br />Congress, originally meant only the federal legislative branch.<br />The Fourteenth Amendment incorporated the state governments into the language of the First Amendment.<br />Local governments are included as state governments.<br />“State actor” or government action.<br />Actors on behalf of “the state” or employed by “the state”<br />
  24. 24. “Abridge” Defined<br />Regulating speech in a manner that is not necessary.<br />Does not violate due process<br />Offers a chance to be heard in court<br />Offers a chance to avoid losing the right<br />Does not regulate content<br />Viewpoint Discrimination<br />Time, Place, Manner Restriction<br />Regulating Actions<br />Prevents a specific harm<br />Vague<br />Overbroad<br />
  25. 25. “Abridge” Defined : “Necessary” <br />Balancing Tests<br />My rights end where yours begin<br />Is the right more important?<br />Is the protection more important?<br />Clear-and-Present-Danger Test<br />Replaces the “Bad Tendency” test<br />Punishes speech that poses a definitive and immediate threat to public safety or national security<br />Writing a letter to the Speaker of the House asking that a sitting President be impeached.<br />Writing an editorial saying the world would be a better place without the President.<br />Writing an editorial suggesting someone slap the President.<br />Writing an editorial suggesting someone kill the President.<br />
  26. 26. “Freedom” Defined<br />We have the right to seek and find the truth.<br />Thus, we have a right to convey the truth.<br />Thus, we have a right to convey information, thoughts, opinions, beliefs that may result in finding the truth.<br />We have the right to participate in political processes.<br />Thus, we have a right to know about political processes.<br />Thus, we have a right to convey information, thoughts, opinions, beliefs about political processes.<br />We have the right to govern the government.<br />Thus, we have a right to discover government actions.<br />Thus, we have a right to discuss government actions.<br />Thus, we have a right to protest government actions.<br />
  27. 27. “Freedom” Defined : Hierarchy<br />Not all speech is created equally.<br />Hierarchy based largely on the reasons for protecting speech<br />
  28. 28. Whose Freedom?<br />The worst kind of ambiguity – the unspoken protected<br />Courts have had a lot of leeway in determining who has the right to speak<br />Again, rooted in why we protect speech<br />Age<br />Age of speaker<br />Age of audience<br />Forum<br />Public<br />Designated Public / Quasi Public<br />Private<br />
  29. 29. Whose Freedom? (Cont.)<br />Official/Authoritative Speakers<br />Government Employees<br />Right v. Duty<br />Limited Right<br />National Security<br />Political/Judicial Fairness<br />Media<br />Public Media  Public Interest<br />Increased Availability  Increased Control/Censorship<br />
  30. 30. Test 1: Intro to the Law, Part III<br />First Amendment<br />
  31. 31. Prior Restraint<br />Injunctions<br />Almost never granted<br />Speech is presumed harmless and beneficial<br />Pre-Publication Agreement<br />Usually upheld<br />Keyword is “agreement”<br />Governmental Review<br />Military information<br />Usually allowed<br />Intended for security<br />Licensing Standards<br />Usually overturned<br />Reasonableness standard<br />Taxes<br />Cannot be selective<br />Cannot use content<br />Post-Publication Punishment<br />Balancing tests<br />Not based on content<br />Not a prior restraint<br />
  32. 32. Content Neutrality<br />The most important thing to remember is that the First Amendment protects EXPRESSION.<br />Some behavior is considered expression, but the law can still regulate behavior and actions.<br />The law intends to protect a substantial government interest.<br />The law advances that interest.<br />The law is narrowly tailored.<br />The law does not block the message completely.<br />
  33. 33. Practice Question<br />You come into your office at the television station, and there is a letter from the network suits.<br />Dear Station Manager, Please be advised that there will be some changes made next month. First, you will no longer be able to air programs where women have on V-neck sweaters with no shirt underneath. Also, you have to air one more commercial each half-hour to compensate for a new licensing fee Nevada is imposing on all networks that air reruns from the 1980s. The extra ads can<br />fill the gap when you stop running that breast cancer P.S.A. – the governor sent us a letter telling us we can’t have naked chests on the air anymore. Please don’t forget we have to send a tape of the interview with the General to his commanding officers before it airs – you know his tendency to say stupid things. The note attached is from your station manager: I’m meeting with legal this afternoon, “What’s your advice?”<br />
  34. 34. Practice Question : Issues<br /> Cannot broadcast women in V-neck sweaters.<br />You will mention this as an issue, because it is a restriction on speech/broadcasting.<br /> Have to air more commercials.<br />You will mention this as an issue, because it compels speech/broadcasting.<br />New licensing fee on all networks that air reruns from the 1980s.<br />You will mention this as an issue, because it could possibly be a prior restraint.<br />Stop running that breast cancer P.S.A. – the governor sent us a letter.<br /> You will mention this as an issue, because it is a restriction on speech/broadcasting.<br />Send a tape of the interview with the General … you know his tendency to say stupid things. <br /> You will mention this as an issue, because it could be a prior restraint<br />
  35. 35. Practice Question : Rules<br /> Cannot broadcast women in V-neck sweaters.<br /> Perform a balancing test for restrictions.<br /> Have to air more commercials.<br /> First Amendment protects against state actors.<br />New licensing fee on all networks that air reruns from the 1980s.<br /> First amendment prohibits content-based restrictions, and licensing fees are restrictions.<br /> Stop running that breast cancer P.S.A. – the governor sent us a letter.<br /> First Amendment protects against state actors.<br /> Send a tape of the interview with the General … you know his tendency to say stupid things. <br /> Security review or military review has to be done for national security purposes.<br />
  36. 36. Practice Question : Analysis<br /> Cannot broadcast women in V-neck sweaters.<br /> This is probably the network’s rule, and the First Amendment only protects against state actors.<br /> Have to air more commercials.<br /> No First Amendment claim, again, there is no state actor.<br />New licensing fee on all networks that air reruns from the 1980s.<br /> This is probably a content-based restriction, and thus unconstitutional.<br /> Stop running that breast cancer P.S.A. – the governor sent us a letter.<br /> The governor is not acting in an official capacity – not a state actor here. He has a right to say what he wants, but we have a right not to listen to him. <br /> Send a tape of the interview with the General … you know his tendency to say stupid things. <br /> If “stupid” refers to embarrassing, we don’t have to edit, but if “stupid” refers to dangerous, we will.<br />
  37. 37. Practice Question : Conclusions<br /> Cannot broadcast women in V-neck sweaters.<br /> You can take it up with the network, but no legal claim I’m aware of.<br /> Have to air more commercials.<br /> Again, you probably don’t have legal recourse.<br />New licensing fee on all networks that air reruns from the 1980s.<br /> You can bring a claim against the state and have this law taken off the books.<br /> Stop running that breast cancer P.S.A. – the governor sent us a letter.<br /> I would send the governor a polite letter thanking him for his input, but explaining the importance of early detection.<br /> Send a tape of the interview with the General … you know his tendency to say stupid things. <br /> Submit the tape for review, but let legal know you may need their advice about the actual edits requested.<br />
  38. 38. N O D<br />N.O.D. is the most important thing.<br />No<br />Outline<br />Dumping<br />Don’t try to squeeze in everything you know that’s related to the issue. <br />Stick to the good stuff.<br />E.G.: If the facts indicate Congress passed a law … <br />… don’t include a discussion of whether Congress is a state actor.<br />Get down to analyzing the law<br />Keep it relevant.<br />THIS MEANS NOT ALL ISSUES ARE CREATED EQUAL.<br />
  39. 39. Good Luck!!<br />Ask questions.<br />Look things up.<br />Work together or alone.<br />If at first you don’t succeed…<br />
  40. 40. Media Law & Legal Resources<br />Test 1 & Final Project<br />
  41. 41. First Things First<br />If you are interested in taking notes for other media law students<br />And have been AND plan to continue to attend class REGULARLY<br />Contact the Center for Educational Access<br /><br />575-3104<br />Can be compensated<br />$25/credit hour<br />16 hours of community service/credit hour<br />
  42. 42. Busy Weeks<br />No class on Monday (Memorial Day)<br />Lecture on Tuesday<br />Test 2 on Wednesday<br />Quiz on Thursday<br />Lecture on Friday<br />Lecture on Monday<br />Lecture on Tuesday<br />Test on Wednesday<br />Quiz on Thursday<br />No class on Friday (Wal-Martian Invasion)<br />
  43. 43. Test 1: Quick Poll<br />Who hated it?<br />Who felt more comfortable after the first attempt?<br />Who wants the same format for the remaining tests?<br />
  44. 44. Test 1: Quick Review<br />Question 1:   Will the discarded guest be successful in suing the senator?<br />Yes, you can sue anyone for anything in our judicial system. 0%<br />Yes, the First Amendment regulates state actors, and the senator is part of congress. 5.882%<br />No, the First Amendment does not apply in private venues, and the senator’s home is a private venue. 11.765%<br />No, the First Amendment regulates state actors, and the senator is not a state actor here. 82.353%<br />
  45. 45. Test 1: Quick Review<br />Question 2:   Will the discarded guest be successful in suing the off-duty police officer?<br />Yes, you can sue anyone for anything in our judicial system. 2.941%<br />Yes, the First Amendment regulates state actors, and even an off-duty officer is considered a state actor. 63.235%<br />No, the first amendment does not apply in private venues, and the senator’s home is a private venue. 13.235%<br />No, the First Amendment regulates state actors, and an off-duty officer is no longer a state actor. 20.588%<br />
  46. 46. Test 1: Quick Review<br />Question 3:   Assuming the judge holds that the off-duty officer is a state actor, what would his best defense be?<br />You cannot sue me under the First Amendment; I was just doing my job. 5.882%<br />I may have violated your First Amendment rights, but I did so because your behavior undermined a legitimate state interest. 66.176%<br />You cannot sue me under the First Amendment; I was in a private home. 16.176%<br />I may have violated your First Amendment rights, but I did so under an appropriate time, place, manner restriction. 11.765%<br />
  47. 47. Test 1: Quick Review<br />Question 4:   What is the name of the test you would use to help the client who yelled “Kill the bitch!”<br />The Clear and Present Danger test 100%<br />The Patriot Games test<br />The Threats of Violence test<br />The Bad Tendency test<br />
  48. 48. Test 1: Quick Review<br />Question 5:   What does the test ask you to determine?<br />Whether the expression was intended to encourage, or likely to encourage the audience to kill the governor. 10.294%<br />Whether the expression was intended to encourage, and likely to encourage the audience to kill the governor. 5.882%<br />Whether the expression was intended to cause, and likely to cause the audience to kill the governor. 58.824%<br />Whether the expression was intended to cause, or likely to cause the audience to kill the governor. 25%<br />
  49. 49. Test 1: Quick Review<br />Question 6:   Which of the following is the strongest evidence against the intent element of the test?<br />Your client has never threatened the life of a public official before. 17.647%<br />Your client has threatened the lives of many public officials before, and nothing has come of it. 7.353%<br />Your client provided no specific method for killing the governor. 20.588%<br />Your client did not provide a meeting time or meeting place to arrange the assassination. 54.412%<br />
  50. 50. Test 1: Quick Review<br />Question 7:   Which of the following is the strongest evidence against the likelihood element of the test?<br />The crowd seemed amused by the comment, rather than aroused. 94.118%<br />The M.C. was quickly able to recover the audience’s attention. 2.941%<br />No one in the crowd was armed. 1.471%<br />No one in the crowd had ever killed a governor before. 1.471%<br />
  51. 51. Test 1: Quick Review<br />Question 8:   Should the school be punishing her son?<br />Yes, it is his patriotic duty; failure to do so violates a legitimate state interest in preventing treason and terrorism. 0%<br />No, the First Amendment guarantees that the state cannot compel speech, unless silence would violate a legitimate a state interest. 83.824%<br />Yes, children do not receive the same amount of protection as adults under the First Amendment. 16.176%<br />No, the Pledge of Allegiance is fascist and a little bit scary. 0%<br />
  52. 52. Test 1: Quick Review<br />Question 9:   Should we be worried about the certification fee?<br />Yes, protecting children is very important, so everyone will have to pay the certification fee. 1.471%<br />Yes, we will have to abide by the new certification guidelines because agreements made prior to publication are always upheld. 5.882%<br />No, the certification requirement will be overturned as unconstitutional because the media is not a finite resource, so it will be considered a prior restraint. 73.529%<br />No, the certification requirement will be overturned as unconstitutional because the media’s duty to report fair and accurate information does not outweigh the media’s right to publish information. 19.118%<br />
  53. 53. Test 1: Quick Review<br />Question 10:   Would you suggest the intern’s do the legal research?<br />Yes, making interns suffer is fun. I had to suffer when I was an intern, and turnabout is fair play. 0%<br />Yes, preparing for a meeting with lawyers is a good way to save time and money; not to mention it helps you make the most of your time with the lawyers. 85.294%<br />No, having anyone other than a licensed attorney do legal research is not only dangerous, but illegal. 5.882%<br />No, it may not be against any laws, but legal research is definitely something best left to the professionals. 8.824%<br />
  54. 54. Test 1: Quick Review<br />Question 11:   LibGuide v. Textbook<br />Average Score 28.57 points<br />Seven Cs<br />Clear and Concise<br />Cogent and Convincing<br />Complete Coverage<br />Corrections<br />
  55. 55. Final Project – What I Need Today<br />Get in your groups (5 min.)<br />How many groups?<br />Pick a person to e-mail me (and the rest of your group) identifying your group<br />
  56. 56. Final Project - Suggestions<br />Hash out a rough schedule (who works late, whose up early, whose going out of town).<br />Ask questions.<br />
  57. 57. Test 2: The Media vs. The Judicial System<br />Media v. Judiciary<br />Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)<br />
  58. 58. Adversaries?<br />Most everything in our society is about competition.<br />The media needs the judicial system – at least the people who work in the media do.<br />The judicial system needs the media.<br />It’s a tenuous relationship at best, though.<br />
  59. 59. Pre-Trial Publicity<br />Media is public enemy #1 to a fair trial.<br />The American judicial system is adversarial.<br />Strong defense<br />Strong prosecutor/plaintiff<br />Jury determines the truth<br />Media offers another version of the truth.<br />This often includes evidence not admissible at trial<br />Evidence not admissible at trial cannot be used to determine guilt or liability in the jury room<br />The best way to avoid that is to keep it from jurors entirely<br />
  60. 60. Pre-Trial Publicity<br />Not all information will bias a jury.<br />Some will be presented in the courtroom.<br />Some jurors will not be swayed by the media.<br />Jury members are very rarely found to be biased by the media.<br />Jury bias is usually discovered during voire dire.<br />Each side is allowed to challenge and remove jurors.<br />Some are “for cause.”<br />Some are peremptory.<br />
  61. 61. Pre-Trial Publicity<br />Usually rampant bias resulting from the media is avoided by moving the trial (change of venue) or getting a new pool of jurors (change of venire).<br />Prior restraint is usually not allowed, except for particularly sensitive information.<br />Usually the restraint is put on trial participants (gag orders).<br />Media restraints have to pass a balancing test<br />Nature and extent of coverage<br />Other options for mitigating damage<br />How effective the order would be at mitigating damage<br />
  62. 62. Trial Publicity<br />Jurors may be sequestered to avoid jury bias during the trial.<br />Admonitions also help avoid jury bias.<br />Secrets of the human mind<br />Directed Verdicts<br />Media and the public generally have access to<br />trials<br />jury selections<br />pre-trial hearings<br />court records<br />
  63. 63. Trial Publicity<br />No state completely bans cameras in the courtroom, but several make it too difficult to be worthwhile.<br />Judges can have cameras removed for certain parts of or for certain types of trials.<br />Jury Interviews<br />Protecting jurors<br />Usually cannot question about deliberations<br />Juror anonymity must be honored<br />Restrictions must be narrowly tailored to serve an important public interest<br />
  64. 64. Contempt<br />Contempt is one of the few areas in the American system of government with no checks and balances<br />Judge is usually the victim<br />Usually directly<br />At the very least indirectly<br />Judge determines guilt<br />Judge determines the punishment<br />Contempt orders are limited by two things<br />The First Amendment<br />Due Process<br />
  65. 65. Criminal Contempt<br />NOT a contempt order stemming from action during a criminal case<br />Punishes behavior<br />Won’t necessarily result in imprisonment<br />
  66. 66. Civil Contempt<br />NOT a contempt order stemming from action during a civil case<br />Compels behavior<br />Can result in imprisonment<br />
  67. 67. Appealing Contempt<br />A judge may order a prior restraint and punish violation with a contempt order.<br />Even after the prior restraint order is found unconstitutional, the contempt order may stand.<br />A contempt order is lifted only under specific circumstances<br />Contempt order is based on a “transparently” unconstitutional order.<br />A good faith effort is made to appeal prior to violation.<br />Balancing test is passed: good vs. harm caused by the violation.<br />
  68. 68. Protecting Sources<br />Anonymous sources are problematic:<br />Anonymity v. Accountability<br />Easy to retract anonymous statements<br />Hard to point to for credibility<br />But, anonymous sources are sometimes necessary.<br />Protection from criminal action.<br />Protection from adverse employment action.<br />Protection from criminal activity.<br />
  69. 69. Protecting Sources<br />The judicial system may be interested to know who your anonymous source is.<br />Criminal prosecution of the source<br />Connections to criminals/tortfeasors<br />Evidence for civil/criminal suits<br />Investigative Journalist vs. Investigator<br />“Free flow of information” vs. “fundamental function of government”<br />Relevant to a specific investigation<br />Demonstrated need<br />
  70. 70. Protecting Sources<br />Fun with “Demonstrated Need”<br />Requested level of balance: No other possible source<br />Supreme Court indication: No other probable source<br />More recent lower courts: Not asked in bad faith; not harassing the journalist<br />Fun with “Bad Faith”<br />Journalist cited for contempt after failure to reveal a source that the prosecutors already knew about<br />The Bush administration has severely expanded the definition of “good faith”<br />
  71. 71. Protecting Sources<br />Criminal Case<br />Information sought is relevant<br />Demonstrated need<br />Compelling need<br />Civil Case<br />Matters whether journalist is a party to the suit<br />The more removed the journalist …<br />The need has to be greater<br />The need has to be more compelling<br />
  72. 72. Miscellany (as in miscellaneous, not the name of a law or a field of law)<br />Don’t forget about statutory law.<br />Search warrants pose their own problems.<br />Cannot challenge prior to use.<br />Only granted in rare cases.<br />Revealing sources can cause problems, too.<br />Have you made a promise?<br />Have you made a contract?<br />Will your actions cause harm?<br />People get greater protection than information<br />Element of confidentiality<br />Greater risk of harm<br />
  73. 73. Test<br />10 multiple choice worth 10 pts. each<br />One short answer worth 30 pts. each<br />This is practice for the project<br />You get points for quality not quantity<br />A clever writer can answer in one sentence<br />Most correct answers are two sentences<br />The best answer I’ve gotten was four sentences, the student got bonus points for going above and beyond<br />The worst answer I’ve gotten was ½ page long<br />Seven Cs <br />
  74. 74. Test 3: Duty to Inform vs. Duty to Respect, Part I<br />Reputation<br />Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)<br />
  75. 75. Quick Flashback<br />What are the three types of restrictions a state actor can put on expression?<br />Time, Place, Manner<br />A journalist was removed from a press area by Secret Service after she handed the President a letter of protest.<br />Was this action constitutional or unconstitutional?<br />Did her removal qualify as a time restriction?<br />A place restriction?<br />A manner restriction?<br />
  76. 76. Defamation<br />Harm to someone’s reputation.<br />Slander ~ spoken defamation<br />Libel ~ published defamation<br />What about television/radio?<br />Can be re-accessed<br />“Published”<br />All journalism that harms someone’s reputation is considered libel.<br />
  77. 77. Libel<br />Criminal Libel<br />Remember the purpose of criminal suits<br />Punish violations of the law<br />Almost completely gone<br />Civil Libel<br />Remember the purpose of civil suits<br />Recover for damages caused by another<br />Frequent problem<br />Even if you win, the legal costs are high<br />
  78. 78. Civil Suit<br />Plaintiff v. Defendant<br />Π v. Δ<br />Π has the burden of proof<br />Burden  Responsibility<br />Proof  Satisfy all the elements of the tort<br />Satisfy  Jury believes<br />Elements  Actions/Inactions/Mental states/Results<br />Δ has to raise doubt that Π has met the burden<br />May refute claims<br />May raise affirmative defenses<br />
  79. 79. Parties to the Suit<br />Any entity with the power to communicate can be a defendant.<br />Not every entity with a reputation can be a plaintiff.<br />People must be alive to be affected.<br />Organizations must be affected as a whole, not on behalf of members.<br />Government cannot sue, even if harmed.<br />
  80. 80. Libel Elements<br />Defamation<br />Identification<br />Publication<br />Falsity<br />Fault<br />Personal Harm<br />
  81. 81. Defamation<br />Statements that expose a person “to hatred, ridicule, or contempt.”<br />Defamatory Content<br />Accusation of criminal activity is defamatory per se.<br />Accusation of product inferiority defamatory only if malicious.<br />Malice can be with intent to do harm.<br />Malice can also be with reckless disregard for the truth.<br />Criticisms of a person’s lifestyle or characteristics can be defamatory if they tend to inhibit personal contact.<br />
  82. 82. Defamation (Cont.)<br />Defamatory Content (Cont.)<br />Communication indicating one is not deserving of respect is defamatory per se.<br />Some courts offer relaxed standards for mistaken defamation:<br />Innuendo<br />Innocent construction<br />
  83. 83. Identification<br />Plaintiff must be identified as the subject of the defamation.<br />Assuming Tammy is a licensed therapist, for which of these could she claim libel?<br />Therapists are not real doctors.<br />Tammy the head-shrinker can’t read.<br />Tammy’s license is fraudulent.<br />I saw Tammy out drinking last night.<br />I saw Tammy dancing on the tables last night.<br />Tammy’s new girlfriend is a socialist.<br />
  84. 84. Publication<br />The communication must be transmitted to a third-party.<br />If a tree falls in a forest …<br />Newspaper article<br />Magazine article<br />Internet article<br />Blog after article<br />Graffiti in a bathroom<br />Insults in a locked diary<br />Insults in an unlocked diary<br />Idle chatter in a bar<br />
  85. 85. Falsity<br />Π must prove his/her/their version of the case is true, and not the published version.<br />Protecting and informing the public outweighs the right to a good reputation.<br />You can write a letter to the editor of a local paper (published)saying not to trick-or-treat at 1357 Made-Up Avenue (identified) because the resident is a child molester (defamed)… IF IT IS TRUE.<br />
  86. 86. Fault<br />There must have been some error that caused the publishing of the false information.<br />It matters whether Π is a private or public figure.<br />Private person<br />Negligently false<br />Failure to use reasonable care<br />Public person<br />Malice: intent to do harm<br />Malice: reckless disregard for the truth.<br />
  87. 87. Fault (Cont.)<br />Public Person vs. Public Official<br />Decision making for the people<br />Decision making for the state<br />Public Official<br />Knowingly false<br />Reckless disregard for the truth.<br />Limited Public Person<br />Public controversy<br />Visible career<br />
  88. 88. Personal Harm<br />To be continued …<br />
  89. 89. Test 3: Duty to Inform vs. Duty to Respect, Part II<br />Reputation<br />Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)<br />
  90. 90. Personal Harm<br />An individual who has been (1) identified in a statement that is (2) defamatory, (3) published, and (4) false (5) to the requisite degree, still might lose a libel suit.<br />Freedom of expression outweighs the right to not be embarrassed.<br />Freedom of expression does not outweigh the right to a good reputation.<br />The difference is suffering some sort of harm.<br />
  91. 91. A Related Side Note<br />The American civil law suit is based on the notion that everyone has a price.<br />There is a certain amount of money that can make up for any loss you suffer.<br />Money can fill the void created for a piano virtuoso who loses his hand.<br />Money can replace the blown out knee of a basketball star.<br />Money can compensate for the loss of a child, spouse, aunt, uncle, sibling.<br />
  92. 92. Personal Harm (Cont.)<br />And money is what we give a plaintiff whose reputation has been damaged by libelous transmission. <br />The total amount of money awarded increases as the degree of harm increases.<br />Money given to “put a situation right again” is called “monetary damages,” “money damages,” or just plain “damages.”<br />
  93. 93. Damages<br />The amount of damages increases as the amount of harm increases.<br />The amount of proof needed also increases as the amount of damages increases.<br />
  94. 94. Defense<br />Plaintiff must prove all of the preceding elements.<br />Defendant can refute any or all of the elements.<br />Refute IS NOT disprove.<br />Defendant may concede every element.<br />If the plaintiff has satisfied every element, the defendant can still launch “affirmative defenses.”<br />Excuses/Exceptions/Explanations<br />Burden of proof temporarily shifts<br />
  95. 95. Factual Disputes<br />Defendant didn’t make the statement.<br />Statement was not about plaintiff.<br />No one heard/read the statement.<br />Statement was true.<br />Defendant exercised proper care.<br />Plaintiff was not harmed.<br />
  96. 96. Affirmative Defenses<br />Statute of Limitations<br />Not portrayed as factual<br />Opinion<br />Exaggeration<br />Figurative language<br />Totality of the circumstances<br />Privilege<br />Absolute Privilege<br />Qualified Privilege<br />
  97. 97. Absolute Privilege<br />Government Official Acting in Official Capacity <br />Consent<br />Cannot recover for something you agreed to.<br />Cannot consent to illegal activity.<br />Broadcasting Political Debates<br />Can be sued for publishing someone else’s libelous communication.<br />Privilege is very specific<br />Live broadcast<br />Political broadcast<br />
  98. 98. Qualified Privilege<br />Reporter’s Privilege<br />A public official made the statement.<br />Statement is accurately attributed to that official.<br />Story as a whole is fair and accurate.<br />Statement was included without intent to harm.<br />Neutral Reportage<br />Statement is newsworthy.<br />Statement is related to public controversy.<br />Statement is accurately attributed to an involved party.<br />Story as a whole is fair and accurate.<br />Statement was included without intent to harm.<br />
  99. 99. Qualified Privilege (Cont.)<br />Message of Mutual Interest<br />Good faith sharing of helpful information.<br />Intra-organizational discussion.<br />Must be among people with common interests that involve the libelous statement.<br />Self Defense<br />Statement intended to combat an attack on Δ’s reputation.<br />News media may use this defense if their media has been used to attack another’s reputation.<br />
  100. 100. SLAPP Suits<br />Strategic Lawsuits Against Public Participation<br />Libel suit brought to discourage open discourse.<br />Usually brought to keep trade or government secrets secret.<br />Intent is not to recover for harm done, but to intimidate those who speak out against corruption.<br />Rarely successful.<br />Still very expensive.<br />Should be countered with a suit for abuse of the legal system.<br />
  101. 101. An Ounce of Prevention<br />Respond to complaints.<br />Most people just want to be listened to.<br />Libel, in particular, is about respect  disrespecting them twice is not helpful.<br />Publish retractions.<br />If a story is wrong – fix it.<br />This minimizes the possibility of a lawsuit.<br />Also minimizes the damage done, if a lawsuit happens anyway.<br />
  102. 102. Test 3: Duty to Inform vs. Duty to Respect, Part III<br />Privacy<br />Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)<br />
  103. 103. Related Side Note<br />Legal Elasticity<br />Stretch to fit desired outcome<br />Interpretation<br />Privacy is a very elastic right.<br />Starts with penumbrae.<br />First Amendment – choose religious beliefs/practices<br />Third Amendment – refuse to quarter soldiers<br />Fourth Amendment – refuse unreasonable search/seizure<br />Fifth Amendment – protect against self-incrimination<br />Ninth Amendment – establish un-enumerated rights<br />Protects rights from abortion to birth control to sodomy to voting.<br />
  104. 104. Privacy from Media<br />Obviously, the media has a duty to find and report information.<br />There is a question as to how hard the media should look.<br />The answer lies in a discussion of privacy.<br />Behind Closed Doors<br />Conference room doors<br />Bedroom doors<br />Bathroom doors<br />Hospital room doors<br />
  105. 105. Intimate Information<br />Publication would be highly offensive to a reasonable person<br />Not previously revealed<br />Beyond embarrassing<br />Shocks the conscience<br />Not of legitimate concern to the public<br />“The American people have a funny way of deciding on their own what is and what is not their business.” – Michael J. Fox as A.J. in Aaron Sorkin’sThe American President<br />Exception is advancing a state interest of the highest order.<br />
  106. 106. Invasion of Privacy<br />Intrusion<br />Focuses on news gathering<br />Mainly surveillance<br />Cannot intrude on things happening in public<br />Can harass or stalk someone in public<br />Trespass<br />Still focusing on news gathering<br />Physical invasion of privacy<br />Keyword: “Physical”<br />Profiting from someone else’s trespass is not trespass<br />Cannot trespass on public property<br />
  107. 107. False Light<br />Highly Offensive Publication<br />Distorted Truth<br />Twisting what actually happened<br />Exaggerating what actually happened<br />Reporting only part of what actually happened<br />Fictionalization<br />Adding false things to what actually happened<br />Embellishing what actually happened<br />Must be more than minor adjustments<br />Published with malice<br />Knowingly false<br />Reckless regard for the truth<br />
  108. 108. Appropriation<br />Unauthorized commercial use<br />You have a right to protect your image.<br />You have a right to control use of your name/likeness.<br />Keyword: “Commercial” rather than newsworthy<br />Keyword: “Unauthorized” as in without consent<br />May suffer economic loss<br />Usually get paid for endorsements<br />Could miss other opportunities<br />May suffer harm to reputation<br />Inferior product<br />Changes the plaintiff’s image<br />
  109. 109. Intentional Infliction of Emotional Distress<br />Outrageous conduct<br />Extreme in degree<br />Beyond all possible bounds of decency<br />Atrocious, intolerable, uncivilized<br />Causes mental anguish<br />Psychologically upsetting<br />Psycho-somatic reactions can increase damages<br />Physical harm not necessary<br />Public figures held to extraordinary standard<br />
  110. 110. Physical Harm<br />There must be a causal relationship between the physical harm and the communication.<br />Actual Cause<br />No other external motivation<br />“But For”<br />Proximate Cause<br />Logical chain reaction<br />Foreseeability<br />Automatically satisfied for intentionally inciting the harm.<br />Must be argued for negligently inciting the harm.<br />
  111. 111. Test 4: Speech & Profit, Part I<br />Copyright<br />Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)<br />
  112. 112. “C” is for Copyright<br />Constitutional Right<br />“Writings”<br />Legalese<br />“original works”<br />“of authorship”<br />“fixed in any tangible medium”<br />Control re-creation of creative works.<br />Control publishing of creative works.<br />Control distribution of creative works.<br />Censorship    Commercialism<br />
  113. 113. “C” is for Copyright (Cont.)<br />Creative expression protected.<br />Cannot copyright facts.<br />Cannot copyright generic ideas.<br />Cannot copyright generic concepts.<br />Can copyright a specific compilation<br />Can copyright a derivative of a copyrighted work<br />If you hold the copyright<br />Or have the permission of the holder<br />
  114. 114. Copyright Holder<br />Author is the holder of a copyright<br />Legalese<br />Creator<br />Joint Creators<br />Employer of Creator<br />Prepared by employee<br />Within the scope of employment<br />Commissioner of creation<br />Government cannot hold a copyright<br />
  115. 115. Copyright Protection<br />Length of protection<br />Personal: Life of the author + 70 years<br />Corporate: The shorter of 120 years from creation or 95 years from publication<br />Notice Suggestion (not requirement)<br />©, “Copyright,” “Copr.”<br />Year of first publication<br />Name of holder<br />Registration/Deposit Suggestion (not requirement)<br />Copyright form<br />$45 fee<br />Copy of the work (two if published)<br />
  116. 116. Copyright Protection (Cont.)<br />Type of protection<br />Distribution: only the holder can publish, sell, loan, or rent the copyrighted material prior to the “first sale”<br />Display: the holder has absolute power over whether and when a copyrighted work can be shown publicly<br />Performance: the holder may sell performance rights, performance licenses, and must comply with compulsory license requests<br />Moral Rights: the holder has a right to attribution and preservation of artistic integrity, as well as a right to profit from the copyrighted work<br />
  117. 117. Copyright Infringement<br />Π holds copyright<br />Material in question is substantially similar to Π’s<br />Δ had access <br />Δ violated Π’s holder rights<br />Δ can be held liable for helping another violate those rights, or profiting from another’s violations<br />Δ cannot be held liable for unknown transmission or temporary storage of an infringement<br />
  118. 118. Fair Use of Copyrighted Material<br />Productive Use as Part of an Original Work<br />News/Commentary<br />Parody<br />Education<br />Nature of the Copyrighted Work<br />Length – Availability<br />Fact/Fiction – Artistry/Effort<br />Quantity + Quality = Substantiality<br />Quotes 60% of the Copyrighted Material<br />Hits all the Highlights<br />Summarizes the Entire Piece<br />Is it still necessary to purchase the original?<br />
  119. 119. Non-Copyrighted Material<br />Misappropriation/Piracy<br />Unauthorized taking<br />of the benefit<br />of someone else’s work<br />Trademark Infringement<br />Must have a trademark<br />Established through distinct, recognizable use ™<br />Registered with the federal government ®<br />Use must not be protected by the First Amendment<br />Use must dilute the distinction of the trademark<br />
  120. 120. Test 4: Speech & Profit, Part II<br />Advertising<br />Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)<br />
  121. 121. What’s more commercial than money?<br />No discussion about regulating commercial speech would be complete without mentioning the use of monetary images in media, so here it is.<br />Money appearing in media must be<br />In black & white<br />And not accurately sized<br />
  122. 122. Commercial Speech Doctrine<br />Commercial speech does “no more than propose a commercial transaction”; it is “related solely to the economic interests of the speaker and its audience.”<br />Must be accurate<br />Must advertise a lawful good/service<br />Regulation is unconstitutional if it does not serve a legitimate state interest.<br />Health/Safety<br />Moral Integrity<br />Aesthetic Quality<br />Regulation is unconstitutional if it does not directly serve the legitimate state interest.<br />Regulation is unconstitutional if it is not narrowly drawn.<br />
  123. 123. Commercial Use of Personal Information<br />Personal information is very useful to advertisers<br />Where you live<br />Regional information<br />Contact information<br />Where you shop<br />Which stores<br />Online vs. In-store<br />What you buy<br />What advertising you respond to<br />How much disposable income you have<br />Who lives in your household<br />Who makes the decisions<br />
  124. 124. Commercial Use of Personal Information (Cont.)<br />We give this information knowingly all the time<br />Birthdates provide a lot of demographic information<br />Your e-mail address can say a lot about you<br />We give this information unknowingly, too <br />IP information on web sites<br />Caller ID gives two area codes<br />Paying with a credit/debit card<br />The collection (knowingly and not) and use of this information is regulated.<br />
  125. 125. Principles of Fair Information Practices<br />Information practices must be disclosed<br />When was the last time you asked about a privacy policy on the phone?<br />When was the last time you read the privacy policy on a statement you were mailed?<br />When was the last time you clicked through an online privacy policy?<br />Consumers must be given a choice<br />This does not give consumers line-item veto<br />Comply or you can’t use this is a choice<br />
  126. 126. Fair Information Practices (Cont.)<br />Consumers must be given access to their own information<br />They do not have to be told they have access<br />They do not have to be provided easy access<br />Information must be stored with a reasonable measure of security<br />This is part of the reason access does not have to be easy<br />“Reasonable” is a term of art<br />
  127. 127. Federal Trade Commission (FTC)<br />Original jurisdiction: protect competitors from unfair/deceptive claims in advertising<br />Additional jurisdiction: protect consumers from unfair/deceptive claims in advertising<br />What is unfair?<br />Likely to Cause Substantial Injury<br />Injury Unavoidable Within Reason<br />Potential Harm Outweighs Potential Benefits<br />What is deceptive?<br />Likely to Mislead<br />A Reasonable Consumer<br />About a Material Matter<br />
  128. 128. FTC (Cont.)<br />Expressly False Claims<br />Blatantly Untrue<br />Plain Meaning is Obviously a Lie<br />Implicitly False Claims<br />No Reasonable Basis for the Claim<br />Evidence Misrepresented as Proof<br />Unique Demonstration Portrayed as Common Result<br />Omission/Dilution of Necessary Qualifiers<br />Exaggeration of Inconsequential Facts as Consequential<br />
  129. 129. FTC (Cont.)<br />Exception for “puffery”<br />Not a Serious Claim<br />Not a Claim of Fact<br />Experts v. Celebrities v. Portrayals<br />Is Paris Hilton an “expert” in perfume?<br />Is it okay for an actor to pretend to have a headache in a pain reliever commercial?<br />Is it okay for an actor to pretend to be a doctor in a pain reliever commercial?<br />Is it okay for an actor to pretend to have found relief in a pain reliever commercial?<br />Is it okay for an actor to pretend to testify to that relief? <br />
  130. 130. FTC (Cont.)<br />Preventative Measures<br />Staff Opinion Letters<br />Advisory Opinions<br />Industry Guides<br />Rules<br />Remedial Measures<br />Consent Decrees<br />Cease-and-Desist Orders<br />Injunctions<br />Affirmative Disclosure<br />Corrective Advertising<br />
  131. 131. Racketeer Influenced and Corrupt Organizations (RICO) Act<br />Regulates interstate enterprises<br />Usually covers fraudulent mail or phone use<br />Deceptive advertising can rise to level of fraud under RICO<br />RICO is a major threat to Πs<br />Δ can recover three types of damages<br />Consumers have standing to sue<br />
  132. 132. Broadcast Advertising<br />Stations can choose how much advertising to show – the market will regulate itself<br />But persons 12 and under<br />Cannot distinguish between commercials and programs<br />Cannot understand persuasive intent/tactics<br />So, programming targeted to this group<br />May only broadcast 10.5 minutes of commercials per hour of programming on weekends<br />May only broadcast 12 minutes of commercial s per hour of programming on weekdays<br />Commercial web sites can only be displayed on screen during commercial time<br />
  133. 133. Broadcast Advertising (Cont.)<br />Cannot advertise tobacco products<br />Can advertise alcohol; most do not advertise liquor<br />Can advertise prescription drugs if<br />information is accurate<br />risks and benefits are portrayed evenly<br />no material facts are omitted<br />access to product label information is provided<br />
  134. 134. Test 4: Speech & Profit, Part III<br />Advertising<br />Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)<br />
  135. 135. Advertising Contests: The Facts<br />America was founded by Puritans, and is largely still run on Puritanical principles.<br />One of these principles is that gambling is wrong.<br />Advertising something that is illegal is wrong.<br />Gambling, by and large, is not illegal.<br />People love a game of chance.<br />It is a good idea to use things people love to sell them things.<br />Advertisers frequently<br />Use contests as promotions.<br />Promote contests.<br />
  136. 136. Advertising Contests: Ads for Gambling Institutions<br />Until the late ‘80s it was illegal to advertise any kind of gambling because it contributed to the delinquency of the population.<br />Now it is okay to advertise a gambling institution if that type of gambling is permissible in the state where the ad is carried.<br />Regulations that prohibit the advertising of a gambling institution are subject to the commercial speech doctrine.<br />
  137. 137. Advertising Contests: Ads for Lotteries<br />A lottery is a specific type of gambling.<br />A game of strictly luck which a player buys into for the opportunity to win a prize.<br />Win by chance<br />Consideration given by participant<br />Prize offered<br />Advertisements for a lottery are subject to the same regulations as advertisements for gambling institutions.<br />
  138. 138. Advertising Contests: Contests as Promotions<br />Previously we were talking about gambling as the subject of an advertisement.<br />Now we are shifting gears to gambling as a type of advertisement.<br />The FTC says these contests cannot be lotteries.<br />Win by chance<br />Consideration given by participant<br />Prize offered<br />Failure of any of the three elements makes the contest not a lottery.<br />
  139. 139. Advertising Contests: Contests as Promotions (Cont.)<br />FCC also regulates contests used as promotions.<br />Must reveal<br />Who is eligible to win<br />Nature & value of the prizes<br />How to enter<br />How to win<br />Dates of the contest<br />Must comply with the information revealed<br />
  140. 140. Securities Transactions<br />First Amendment grants the right to disperse information … with certain exceptions.<br />First Amendment grants the right to refrain from giving information … also with certain exceptions.<br />One of those exceptions is the requirement of publicly traded companies to disclose financial information.<br />Periodic reports<br />Press releases<br />Annual stockholders’ meetings<br />Federal registration with the Securities and Exchange Commission (SEC)<br />Proxy statements (disclosure of executive compensation)<br />Recorded sales, purchases, options<br />
  141. 141. Securities Transactions (Cont.)<br />Insider trading is not illegal.<br />Insider trading without proper public communication is illegal.<br />Based on private information that should be public<br />Done without proper disclosure<br />Calculated to reach the securities marketplace<br />Through recognized channels<br />In a timely manner<br />Providing a reasonable reaction time<br />
  142. 142. Securities Transactions (Cont.)<br />These disclosures must be accurate.<br />More importantly, though, they must NOT be manipulative or deceptive.<br />Fraud is a particular type of deception and manipulation.<br />Knew the information was inaccurate<br />False<br />Incomplete<br />Inaccurate information material to the decision made<br />Intended for the inaccurate information to deceive or manipulate the decision-maker<br />
  143. 143. Test 4: Speech & Profit, Part IV<br />Pornography<br />Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)<br />
  144. 144. Sex Sells: The Facts<br />America was founded by Puritans, and is largely still run on Puritanical principles.<br />One of those principles is that the naked human body is bad.<br />Interactive human bodies are worse.<br />Displaying naked human bodies is bad.<br />We talk about it here for two reasons. <br />The given reason: artistic expression<br />The actual reason: $ex $ell$<br />
  145. 145. Sex Sells: The Distinctions<br />Puritanism being what it is, though, we can only allow so much sex to be sold.<br />Thus, under the given reason, there is a difference between obscenity, pornography, and indecency.<br />Obscenity: appeals only to prurient interest<br />Pornography: sexually explicit material that may be obscene or indecent <br />Indecency: appeals to prurient interest but is protected as some form of political, artistic or educational expression (that is commercially viable)<br />
  146. 146. Sex Sells: Obscenity<br />Obscene material is not covered under the First Amendment.<br />The sole purpose of obscene material is to make people think about and want to have sex.<br />No other message of any social value<br />In any section of the work<br />This standard is different in different areas of the country because it is measured against “the average person, applying contemporary community standards.”<br />Obscene material is patently offensive to any reasonable person.<br />
  147. 147. Sex Sells: Minors & Minorities<br />Material that might not be obscene if it contained adults could be obscene if it contains children.<br />Material that might not be obscene if it is marketed toward adults could be obscene if it is marketed toward children.<br />Material that might not be obscene if it were marketed to the population at large might not be obscene if it is marketed only to an “atypical” or “deviant” population.<br />
  148. 148. Sex Sells: Punishing the Publisher<br />Making and publishing obscene works is a punishable offense.<br />If you have come into possession of material that is obscene, that is not a punishable offense (except for that involving minors).<br />The focus of obscenity regulations is on public communication of the obscene material. <br />
  149. 149. Sex Sells: Protecting the Publisher<br />Prior restraint only allowable if:<br />Specific amount of time.<br />Short amount of time.<br />Judicial review is expeditious.<br />Censor bears the legal burden.<br />Any administrative ruling on obscenity can be challenged in the courts.<br />
  150. 150. Sex Sells: Indecency<br />Indecent material is protected, but can be regulated.<br />Regulations are analyzed according to<br />Technological aspects of the medium used to publish the indecent material<br />The effort required to observe the indecent material (or the likelihood of accidental encounters with the indecent material)<br />
  151. 151. Sex Sells: Indecency in the Media<br />Print media (including the Internet) requires a person to be able to read or at least purchase the material, so it is least strictly regulated. <br />Anyone can turn on the television or radio at any time, so it is most heavily regulated, and “indecent” is most strictly defined.<br />Television or radio which requires a special subscription is less heavily regulated.<br />The more special the subscription, the less heavily regulated.<br />
  152. 152. Sex Sells: Indecency in the Media (Cont.)<br />Indecent broadcasts are subject to time and manner restrictions.<br />Time: restrictions are heavier when children are more likely to be viewing or listening.<br />Manner: restrictions are lighter as the non-prurient value increases.<br />All forms of media depend on a certain amount of policing in the home.<br />Print media and the Internet the most.<br />Theatrical presentations a close second.<br />Broadcast media increasingly more.<br />
  153. 153. Sex Sells: Familial Regulations<br />Once indecent print media (including the Internet) is brought into the home, responsibility for controlling access rests with the guardians.<br />Ratings systems for movies are designed to promote family rules about viewing films.<br />Other theatrical events, such as plays and concerts are also regulated primarily by family rules.<br />Advertisements tend to indicate whether and to what extent a performance will be indecent.<br />Broadcast media has started to implement a ratings system to promote family rules about television watching.<br />
  154. 154. Test 5: Politics, Part I<br />Chapter 12<br />Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)<br />
  155. 155. Democracy: The Facts<br />Democracy is a system of government whereby the rule of law is determined by the people.<br />America is ostensibly a democracy, but 306 million people could not get together to talk about anything much less agree on it.<br />So, we have a representative democracy. People vote on who they want to represent them in determining the rule of law.<br />Representative Democracies have the unfortunate side effect of creating politics.<br />
  156. 156. Democracy: Politics<br />The necessity of electing people creates politicians – people who know how to run for government, especially while they are in government.<br />The existence of politicians makes the media über important.<br />306 million people depend on the media for information that will help them make sense of what politicians are doing and saying – and what that means for each of them.<br />
  157. 157. Democracy: Politics (Cont.)<br />Of course, this last statement depends on a utopian society where<br />Everyone is interested in the rules of law that govern them.<br />Everyone who is interested is an active participant.<br />Everyone who is an active participant wants to be an informed participant.<br />Everyone who wants to be an informed participant seeks out information.<br />None of these statements is true, but let’s just go with it.<br />
  158. 158. Democracy: Politics (Cont.)<br />Some people are interested, active and involved.<br />Whether you are going to be a journalist or any other member of the citizenry, I challenge you to be one of those people.<br />NOTE: Your rights are the same either way.<br />The best way to be one of those people is to know the access rights you are afforded and exercise them.<br />Exercising them is up to you.<br />I’ll tell you what they are.<br />
  159. 159. Access Rights<br />You have no constitutionally protected right to access places or information.<br />Even things happening in a public place are not necessarily accessible.<br />If some public good can be served by blocking access, access can be blocked.<br />The more private a location, the more likely it is you will not have access.<br />The only “right to access” is that journalists cannot be given less access than anyone else.<br />
  160. 160. Access Rights (Cont.)<br />The more personal information is, the harder it is to access.<br />The more impact information has on the public, the easier it is to access.<br />Military information is an exception.<br />Protecting military secrets<br />Protecting military personnel<br />Protecting military equipment<br />Health information is a grey area.<br />Public health is a concern<br />Personal medical information is private<br />
  161. 161. Freedom of Information Act (FOIA)<br />FOIA establishes<br />A formal procedure for requesting information from a federal agency<br />A formal procedure for denying access<br />A protocol for challenging the denial<br />FOIA mandates disclosure of documents the agency possesses and controls unless it involves<br />National/Homeland Security – Information about Wells<br />Personnel/Medical/Similar Files – Pending Investigations<br />Internal Rules & Memoranda – Confidential Business Info<br />Private Information – Driver’s Records<br />Banking Reports – School/Disciplinary Records<br />
  162. 162. State Regulations<br />FOIA only applies to federal agencies.<br />Other statutory and common law at the state level provide access to state and local public records.<br />Requests under these rules are usually still called FOI requests or FOIA requests as a matter of shorthand.<br />As a matter of accuracy, do not call them that unless you know your state’s record policy is called the Freedom of Information Act.<br />
  163. 163. The Slippery Slope to Soft Money<br />By and large, the slippery slope is a fallacy.<br />It’s a scare tactic.<br />But, there’s a reason it’s scary.<br />Sometimes it’s real.<br />As a country we went from perfectly valid arguments about the freedom of expression, and created a rule that said companies, churches, and other organizations could give unlimited amounts of money to fund campaigns.<br />
  164. 164. Beyond Accessing Information<br />As you may recall, FOIA gives us important access to important information.<br />Once we had the right to obtain the information, we had to have the right to dispense it.<br />Once citizens had the right, journalists had the right.<br />Once journalists had the right, media organizations had the right.<br />Once media organizations had the right, media corporations had the right.<br />Once media corporations had the right, non-media corporations had the right.<br />
  165. 165. How to Communicate Information<br />So everyone has the right to access and communicate information. So far so good.<br />Citizens can hold rallies and meetings and post messages.<br />Journalist and the media can use newspapers, magazines, air waves, coaxial cable, satellites, etc.<br />But non-media corporations had a bit of a problem – no real channel for communication.<br />So they were allowed to purchase air time, or print media space, or use their own information conduits to deliver the information.<br />
  166. 166. On and Unrelated Note<br />“[T]he First Amendment was fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes … the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)<br />
  167. 167. It seemed like a good idea at the time …<br />Really this is pretty harmless.<br />There’s no reason any of these things should not have come to be.<br />But it’s difficult to tell how two things will react when they are combined.<br />You can bond a volatile metal with a poisonous gas and make table salt.<br />You can take two obvious statements about the freedom of expression and make spending money a protected form of speech that cannot be regulated.<br />
  168. 168. How did we end up here?<br />Companies and organizations must be allowed to spend money to achieve the goal of expression.<br />The most important type of expression is that regarding campaigns and elections.<br />Companies and organizations must be allowed to spend money to voice opinions about campaigns and elections.<br />It’s a simple analogy, but the result is far from table salt.<br />
  169. 169. So What?<br />A democracy – even a representative democracy – is ruled by the people.<br />Corporations are not people.<br />Corporations have very different interests than the vast majority of people.<br />Think labor laws.<br />Think stock market.<br />Think taxes.<br />Think property values.<br />Think zoning regulations.<br />
  170. 170. Just a Difference of Opinion<br />People who want different things and are willing to argue for them (or pay others to argue for them) is an essential part of democracy.<br />People, however, are similarly situated in the amount of power they have over each other and the amount of money they can throw at something …<br />… not when comparing the wealthy to the homeless …<br />… but when comparing people to corporations …<br />
  171. 171. Digging Our Way Out of a Hole<br />Oooops. We gave companies too much power.<br />Enter the Federal Election Campaign Act (1971).<br />Corporate entities (and labor unions) are prohibited from using money to campaign for a candidate.<br />Corporations could spend far more money than people.<br />We wouldn’t want a candidate beholden to a corporation if elected. <br />But, they can still contribute to get-out-the-vote initiatives and campaigns for issues. <br />
  172. 172. Digging Our Way Out of a Hole (cont.)<br />Again, this seems harmless enough.<br />We cannot say that corporate entities have no right to express themselves.<br />Unfortunately people suck.<br />Get out the vote ads can encourage voting for a specific party, and specific parties usually don’t run more than one candidate for any given office.<br />An issue ad that encourages voting “Pro-Life” does not mention the Republican candidate by name, but is surely not an ad for the liberal candidate.<br />
  173. 173. Digging Our Way Out of a Hole (cont.)<br />In 2000, the federal DNC and RNC received $500 million to spend on issue ads and get-out-the-vote campaigns.<br />So, in 2003 FECA was amended so the money had to go to state DNCs and RNCs.<br />Some believe this solves the problem.<br />Some believe there was never a problem to solve.<br />Others think this just continues to try and dig a way out of a hole.<br />
  174. 174. Exceptions to the Rule<br />Political Action Committees (PACs)<br />527 Groups<br />“Partisan Communications”<br />Press Exemption<br />
  175. 175. Test 5: Politics, Part II<br />Rest of the Tab<br />Note: This test will be comprehensive (i.e.: it may include questions on information from previous slides.)<br />
  176. 176. Exceptions to FECA (cont.)<br />Political Action Committees (PACs)<br />527 Groups<br />“Partisan Communications”<br />Press Exemption<br />
  177. 177. PACs<br />Independently funded organizations<br />Purpose is to raise and spend campaign money<br />PACs are regulated, but the regulations are controversial<br />
  178. 178. PACs (cont.)<br />Sponsorship<br />Anyone can sponsor a PAC<br />PACs that are sponsored by corporate entities or labor unions must be “separate segregated funds”<br />Soliciting Funds<br />PACs can only solicit voluntary contributions<br />PACs can only solicit from members<br />Contributing to the PAC does not create membership<br />If an organization has a hierarchy only the top-tier are members<br />
  179. 179. PACs (cont.)<br />Contributions<br />$5,000 in an election to any candidates <br />$15,000 in a year to national political parties<br />$5,000 in a year to other political committees<br />Expenditures<br />Unlimited “independent expenditures”<br />Advertising for a campaign<br />Covering expenses for a campaign<br />
  180. 180. 527 Groups<br />Chapter 26 of the Internal Revenue Code has a section 527 which states that an organization may receive unlimited amounts of money from any entity for issue advocacy and get-out-the-vote activities without paying taxes on that money.<br />All financial activities of these 527 groups are reported to the IRS for tax purposes.<br />527 groups become PACs – subject to PAC regulations – when they establish a “separate segregated fund” and register with the FEC.<br />527 groups are supposed to become PACs when their endeavors become focused on a candidate.<br />
  181. 181. “Partisan Communication”<br />Another term of art, “Partisan Communication” does not just refer to statements advocating for or against a party.<br />This exception applies when a corporate entity or labor union distributes political messages to its “family.”<br />People who could belong to any PAC the entity might have can receive unfettered political communication from the entity.<br />The press can cover these communications.<br />And the entities can ask the press to cover them.<br />
  182. 182. Press Exemption<br />Media outlets that are public information conduits<br />With no ties to candidates, parties or political committees<br />Can publish stories, commentary or editorials focusing on candidates<br />
  183. 183. Access for Political Candidates<br />Broadcasters must provide “reasonable access” to political communications.<br />“Reasonable”<br />Some time<br />During prime time<br />Can ban political advertising during newscasts<br />Should not use censorship as a reason to deny certain accesses<br />
  184. 184. Equal Opportunities Doctrine<br />Equal opportunities<br />Not equal time<br />Free time or purchased time<br />For qualified candidates<br />Publicly announced intent to run<br />Legally eligible to hold the office <br />Will be on the ballot, at least as a write-in<br />To use broadcast time<br />Positive appearance<br />Of candidate’s voice or image<br />
  185. 185. Equal Opportunities Doctrine (cont.)<br />Normal rates can be charged except<br />45 days before a primary<br />60 days before a general election<br />“Normal” rates cannot be higher than what would be charged the highest-volume advertisers<br />Never has to be lower than the lowest rate offered other advertisers<br />
  186. 186. Equal Opportunities Doctrine (cont.)<br />Normal rates can be charged except<br />45 days before a primary<br />60 days before a general election<br />“Normal” rates cannot be higher than what would be charged the highest-volume advertisers<br />Never has to be lower than the lowest rate offered other advertisers<br />
  187. 187. Equal Opportunities Doctrine (cont.)<br />Candidates must be held to the same rules and policies as other advertisers.<br />Candidates must have the same access to the rules and policies.<br />Candidates must be allowed to negotiate rates and rate packages.<br />Opposing candidates cannot be charged different rates.<br />
  188. 188. Equal Opportunities Doctrine (cont.)<br />Candidate ads must include a statement from the candidate endorsing the ad if the candidate does not appear in the ad.<br />All political ads must have a statement specifying who paid for the ad.<br />
  189. 189. Equal Opportunities Doctrine (cont.)<br />Broadcasters cannot censor candidates on air under the Equal Opportunities Doctrine<br />Racism<br />Vulgarity<br />Defamation<br />Only applicable when the candidate’s voice or picture is part of the broadcast<br />Broadcasters not liable for candidates’ uncensored remarks<br />
  190. 190. Equal Opportunities Doctrine (cont.)<br />Equal Opportunities Doctrine does not apply if candidate has no control over the broadcast.<br />Newscasts<br />Regularly Scheduled<br />Journalist-Regulated<br />Emphasis on News<br />Candidate’s Presence is Only Incidental<br />On-the-Spot Coverage<br />Live broadcast<br />Of a bona fide news event<br />Speech<br />Announcement<br />Not intended to favor one candidate<br />
  191. 191. The Fairness Doctrine<br />Originally: A reasonable percentage of airtime had to be devoted to public issues and contrasting views had to be presented for controversial public issues.<br />Then there were the “personal attack” and “political editorial” rules.<br />Personal attack: free reply time must be given to those who are personally attacked, unless it was a foreign group or public figure.<br />Political editorial: candidates must be given notice and transcription of any broadcasts of opposition and offered free reply time.<br />
  192. 192. The Fairness Doctrine (cont.)<br />Now the Fairness Doctrine is pretty much just the Zapple Rule.<br />Supporters of political candidates must be given equal opportunity to the airwaves. <br />Equal free time<br />Equal chance to buy airtime<br />This is not the Equal Opportunities Doctrine.<br />
  193. 193. Compelled Political Speech<br />Political Financing is one of the areas where speech and disclosure can be compelled.<br />All contributions and expenditures to a campaign must be a matter of public record.<br />The source of the contributions must generally be provided unless there is a compelling reason to make it anonymous.<br />Broadcasters must keep extensive public records about purchase requests for political ads.<br />
  194. 194. Compelled Political Speech<br />Lobbyists must register.<br />Lobbyists must disclose their income.<br />Lobbyists must disclose their expenditures.<br />Lobbyists must disclose which laws or regulations they try to influence.<br />