MASS MEDIA LAW OUTLINE I. THE FIRST AMENDMENT AND THE MEDIA a.

VALUES SERVED BY SPEECH; 3 THEORIES FOR 1ST AMENDMENT: i. Political Theory - freedom of expression serves to further democratic governance. 1. Freedom of Speech and Freedom of Press: Primarily about protection of political speech. 2. Courts have not taken that strict of a view. Present view has gone beyond political speech. ii. Marketplace of Ideas - through competition in the free marketplace, truth will prevail. 1. Ideas compete for acceptance. 2. Symbolism of ancient Greek forums, where people met to discuss political ideas. 3. Political speech and matters of public concern. a. Should it be matters of public concern? Major divide b/t liberal and conservative justices. iii. Self-Realization/Self-Fulfillment 1. Personal autonomy. 2. About intrinsic value to the individual. 3. Ex: right to enjoy obscenity in the privacy of your home. iv. The Court has not formally accepted any of these theories. 1. Conservatives especially like things that emphasize the primacy of political speech (liberals do too). b. METHODS OF 1ST AMENDMENT ANALYSIS; COMPETING DOCTRINAL MODELS FOR THE 1ST AMENDMENT i. Balancing approach 1. Weighs 2 interests: (1) Govt.'s concern about protecting a particular interest against (2) the speaker's or writer's (and society's) interests in expression. 2. Landmark Communications v. VA (1978): If constitutional protection of free press means anything, it means that govt. cannot take it upon itself to decide what a newspaper may and may not publish. a. Govt. may deny access to info and punish its theft. b. Govt. MAY NOT prohibit or punish the publication of info once it falls into the hands of the press unless the need for secrecy is manifestly overwhelming. 3. Smith v. Daily Mail (1979): WV statute made it a crime for paper to publish names of juveniles in connection w/delinquency proceedings w/o written order of court. a. If a newspaper lawfully obtains truthful info about a matter of public significance, state officials MAY NOT constitutionally punish publication of the info absent a need to further a state interest of the highest order. ii. Categorical Approach: The Traditional ("Liberal") Worldview (c. 1950) 1. Important to remember that both liberals and conservatives have to look at a world view rather than a formal model. a. These models are inferential - not explicit. b. Both sides must deal w/ existing precedent from previous cases. In that sense, no real model. The law today is really a hybrid of the 2 world views. 2. Umbrella: 1st & 14th Amend.; Free Speech & Free Press; Content Protection "fundamental rights" (subject to strict scrutiny). 3. Certain classes of speech categorically excluded - considered creatures of state law beyond the 1st Amendment and NOT Protected (outside umbrella): a. Unlawful Advocacy i. Clear and Present Danger Doctrine - A limitation on Unlawful Advocacy. 1. Idea that you can go after a person who incites an unlawful act, even if that act does not occur. 2. Schenk: No right to shout "fire" in a crowded theatre. 1. Holmes: There must be a clear and present danger to convict. "Expression could be punished when the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent" - it's a question of proximity and degree. 1. Danger: 1. Gravity? 2. Imminent? 3. Probable?

b.

c. d.

e. f. g.

h.

4. Abstract ideas? Difference b/t keys of persuasion and triggers of action. 2. Later, neither gravity or immanency are important when talking about the overthrow of the govt. - let states make that decision. 3. Brandenburg (1969): 1. Court comes up w/ a clear and present danger test that liberals think is even better - creates a safe harbor for such speech. 2. Associate the clear and present test with incitement by a speaker to an empathetic crowd. 1. The words themselves MUST be directed toward inciting imminent unlawful action, AND it is probable that the imminent unlawful action would occur. 1. Seems to suggest there must be triggering words. 2. Addresses everything except the gravity of the danger - liberals like this (there is lawful action and there is unlawful action). No balancing - a bright line test. 3. After Brandenburg, very little clear and present danger will be tolerated. Collapse of this category. 4. Hate speech? Symbolic hate speech? 4. Next 30 years (starting in 1970's) - development all around the board. Categorical exclusions outside scope of 1st Amend. either break down and collapse or being to erode and retreat. Umbrella spreads wider and wider, as more speech is covered under the 1st Am. Fighting Words i. Chaplinsky (1942): Fighting words: Words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Beyond 1st Am. protection. Hostile Audience i. Collapse of this category. ii. Realize not possible to suppress b/c people willing to beat them up. National Security i. Early Pentagon cases - issue of prior restraints. Release of highly classified, embarrassing info. Prior restraints not upheld there. Realization that nat'l security not a broad exception. ii. Enormously eroded category. Defamation i. Major retreat beginning w/ NY Times v. Sullivan. Need malice - knowledge of the falsity or reckless disregard of the truth. Privacy, Publicity Commercial speech i. Speech solely for a profit, usually for advertising. By 1970's, brought under 1st Am. umbrella. ii. Only 2 subcategories of commercial speech are not protected: 1. Fraudulent/misleading - can be regulated or suppressed. 2. Advertising unlawful goods/services. 3. (Otherwise, analyzed under O'Brien-type test). Obscenity i. Still exists, but increasingly eroded in terms of actual speech that is kept out of public market. ii. Miller test is hard to overcome - 3-prong test for determining obscenity: 1. Avg. person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, AND 2. Depicts/describes sexual conduct in patently offensive way defined by state law; AND 3. Lack serious literary, artistic, political or scientific value.

iii.

What was once considered obscene speech now falls under umbrella as "indecent" speech. 1. Indecent speech never defined by Supreme Ct. Likely to fall under statutes and regulations (ex/ FCC) rather than a formal test for any constitutional applications. 4. Increasingly, as conservative judges step back and look at 1st Am. universe spreading wider and wider, they realize they can't really fight the liberals for the proposition that more and more of this speech is protected as 1st Am. speech. They begin to say, we'll accept a broad read on how much speech is under the umbrella, but some speech is more equal than other speech. Categorical Approach - The Emergent ("Conservative") Model: Increasingly pushed by Conservatives on the Court. 1. Emphasizes hierarchies of value depending on category of speech. 2. ALL speech under the umbrella - BUT receives different levels of protection: a. Political speech (highest 1st Amend. protection). b. Speech of public concern. c. Commercial speech. d. Obscenity and Indecency. i. Generally understood as having no protection in 1950's. ii. Today indecency gets marginal protection. iii. If really obscene, under Miller test gets NO protection. iv. Herceg v. Hustler Magazine, Inc. (1988) 1. Autoerotic asphyxiation article protected under 1st Am., and thus gets high-tier protection, provided that they can rule out any exclusionary categories. 2. Majority uses liberal approach: 1. Is article outside umbrella of 1st Am. Protection? Is it incitement (C&P danger test). No. Is it obscenity? (Miller test). No. Advocacy of unlawful action? (Brandenburg). No not urging it, just describing it - can't meet Brandenburg standard. Thus it falls w/in the umbrella of protection and there can be no damages action against Hustler. 3. Jones dissent: Even if something is w/in umbrella of protection, diff. types of speech should get diff. levels of protection. Jury should have had an opp. to hear this case - article should have been found by jury to be obscene. But accepts that if it's indecent but not obscene, it's low-ranked and gets less protection. e. Fighting Words i. Chaplinsky: "Fighting words" are words that invite a violent response. Content-neutral regulation. ii. Cohen: Man wears a jacket w/ the words "Fuck the draft." Court says these are not fighting words - no threat of violent reaction to the shirt - just a general message. Symbolic speech. iii. R.A.V. v. St. Paul (1992): 1. Symbolic hate speech: Not protected as much as express hate speech. Most hate speech in our country, including symbolic hate speech, will not be banned. 1. Ex. Nazis get to hold demonstrations here. 2. Symbolic hate speech not express enough to meet Brandenburg test of clear and present danger of unlawful action - very hard standard to meet. 3. In theory, under emergent Conservative view, books like Mein Kampf receive high protection as political speech. 1. Liberals would not want to get into this type of ranking by category. 2. But arguably, under emergent model, indecent magazine might not receive protection but Mein Kampf may as political speech. 4. Can we legislate the burning cross or swastika? Not under current law. Burning issue is whether we amend the 1st Am. 2. D charged w/ violating hate crime ordinance here for burning cross in black family's yard. St. Paul ordinance - prevented public use of

iii.

3. 4. 5. 6.

symbols, objects, etc. that arouse anger based on race, creed, gender, etc. Not arguably about punishing advocacy of unlawful action, but arguably might be about fighting words. 3. Fighting words doctrine today can be classified as fighting words, etc., b/c includes more than just fighting words - also can include true threats, anger, resentment. 4. The burning cross is presumptively about true threats, but the case uses the term fighting words - we will interpret that broadly. 5. Liberals: Can look at this like Chaplinsky and say not covered. Or can look at it like Brandenburg, in which it's a private event in the woods in which no one sees the burning cross. Liberals would probably find the facts of R.A.V. outside the umbrella w/ fighting words, and punishable. 1. Liberals think the statute on its face is punishing Cohen-type situations, therefore on its face its overbroad and outside Constitutional protection. 6. Conservatives (Scalia): The statute isn't overbroad, but is underbroad and under-inclusive. 1. 2 points of opinion: 1. Categorical "priorities." 1. Scalia says Chaplinsky never meant to keep fighting words outside of 1st Am. protection. Place fighting words (as well as true threats) into the emergent model, b/t commercial speech and indecent speech. So give it low 1st Am. protection (b/c not pure abstract political speech). 2. W/in each category, viewpoint neutrality. 1. Scalia's argument for under-inclusiveness: Says this statute doesn't punish fighting words generally; it only punishes hate crime fighting words. And even more objectionable, it singles out black and Nazitype hate words fighting speech. 7. In a follow-up case, a more specific statute for cross burning. Ct. there said you could go after cross burning. Hard for statutes to stand up to the Ct. unless it meets a true threats/fighting words standard, and Ct. here seems to find that it met that standard. Current law seems to be that yes, you can go after cross-burning if you confine it to the liberal model where it's just limited to true threats/fighting words, and not like Cohen where directed broadly at "offensive conduct." Under Conservative Model, different tiers get different tests. Content neutral w/in each category - can't punish only certain types, must punish all. Traditional Model increasingly playing into hands of liberals, who want a broad read on 1st Am. rules. Categorization today is almost always linked with balancing, with the choice of category determining the level of scrutiny to be used when balancing the competing interests in restricting the expression and protecting free speech. a. Strict scrutiny: narrowly tailored to meet a compelling government interest (no longer has to be least-restrictive means). b. Intermediate scrutiny: typically used by the Court to evaluate regulations that affect expression but are not targeted at expression, target only low-value expression, or do not discriminate among types of expression. i. OBrien (SC 1968): OBrien convicted for burning draft card on steps of courthouse to protest U.S. military establishment. Argues his act was protected symbolic speech under 1st Am. 1. Holding: A content-neutral regulation will be sustained if it furthers an important or substantial govt. interest; if the govt. interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged 1st Am. freedoms is no greater than is essential to furtherance of that interest. A

regulation need not be the least restrictive meansrather, the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that will be achieved less effectively absent the regulation. c. PRIOR RESTRAINTS i. A strong presumption against it, so govt. has large burden to protect against it. ii. Prior restraints: 1. Injunctions (like in Pentagon Papers case). a. TRO i. To get a TRO in a speech case, must show: 1) irreparable harm; 2) an interest stronger than free speech. b. Preliminary injunction c. Permanent injunction d. Gag orders - very hard to get. 2. Licenses 3. Censorship iii. Distinction b/t prior restraints and subsequent punishment 1. Infringements on free speech/free press not defined as prior restraints: subsequent (postspeech) sanctions; punishment a. Criminal statutes --> fines and/or imprisonment. b. Compelled speech --> right of reply; require Cablevision to carry competing channels near e/o or carry certain amount of stations, etc. c. Civil actions for damages --> defamation; wrongful death d. Administrative sanctions iv. Recognition of the strong presumption against prior restraints. 1. We don't have many cases about this - main 2 are Near and Pentagon Papers. 2. Near v. Minnesota (S.C. 1931): a. Newspaper comes out w/ nasty remarks about public officials. b. MN statute: prevents publication of "malicious, scandalous and defamatory articles." c. Lower ct. enjoins the newspaper from publishing malicious, scandalous, defamatory statements. i. Injunctions are not typically issued for defamation. d. Ct. rules the statute is unconstitutional - violates 1st Am. e. Strong presumption that prior restraints are unconstitutional - if punished afterward at least society can make judgments. f. Prohibition can only be overcome in exceptional cases (dicta): Exceptional cases, such as those involving dire threats to nat'l security (wartime), obscenity, incitement to acts of violence, overthrow of orderly govt. 3. NY Times v. U.S. (Pentagon Papers) (SC 1971): a. Govt. argues nat'l security to justify prior restratint. But the material is historical info, not present military info. So govt. argues that publication would be so embarrasing to U.S. that it would impede govt.'s ability to withdraw from Vietnam and thus more troops would die. b. Holding: Govt. failed to meet its heavy burden of proof to overcome presumption against prior restraints. 4. U.S. v. the Progressive (1979): a. One of the few cases upholding prior restraint in the interest of nat'l security. b. Ct. holds that publication on the hydrogen bomb is analogous to troop movements/location in time of war, and falls w/in extremely narrow exception of rule against prior restraints. Distinguishes Pentagon Papers case b/c that was historical info, rather than future threat to nat'l security. v. Are prior restraints more restrictive than subsequent punishment by criminal sanctions or civil liability? 1. Jeffries article: Argues that we can't really get injunctions. They aren't very useful/effective in terms of suppressing the media. Maybe subsequent punishments are scarier; more effective. Why this strong presumption against prior restraints? a. Collateral Bar Rule: Majority rule. If a party is subject to an injunction, they may dispute the validity of the injunction on its merits. But, if party instead violates the injunction and is sued for contempt of court, they cannot then argue the injunction's substantive merits. vi. Disobeying Injunctions

1. 2.

Fear that by the time cts. vindicate right to publish, matter will no longer be news and as soon as one media outlet is enjoined competitors usually attempt to get and publish same info. Exceptions for prior restraints against speech a. In re Providence Journal (1st Cir. 1985): i. Ct. holds that a "transparently invalid" injunction can be disobeyed w/o violating collateral bar rule. But there must be a good faith effort to get a timely review of the injunction on the merits. ii. Not the majority rule. b. The Business Week Case (6th Cir. 1996) i. Ex parte TRO against Business Week publishing info that was under seal (w/ no ct. supervision) and gained improperly. Ct. of App. permanently enjoined mag. from using the material on ground that the mag. knowingly violated the protective order when it obtained the docs. ii. Holding: Permanent injunction was patently invalid. TROs against pure speech by the press is not to be joined by the usual standards; ex parte orders preventing publication violate the 1st Am. unless "showing is made that it is impossible to serve or notify opposing parties and give them opportunity to participate." 1. Very strong presumption against an ex parte TRO. 2. Must show: (1) order is necessary to prevent irreparable injury & (2) interest threatened more fundamental than 1st Am. itself.

II.

DEFAMATION a. COMMON LAW BACKGROUND i. Elements of the Tort 1. "Publication" a. Need some sort of dissemination. b. Historically, distinction b/t Slander (spoken word) and Libel (written word). Most courts do not make this distinction today. i. Most televised spoken word is probably classified as libel. 2. "Of and Concerning the Plaintiff" a. Sometimes, there is inferential libel as to who you are talking about. b. Identification of P - must show it was P who was defamed. c. What about group defamation - how large can the group be? i. "Citizens of NY" is too large, but "waitresses at Mary's Deli" is probably small enough for defamation action. d. Of and concerning an alleged "factionalization" - a work of fiction that seems very much based on real individuals. People allege it's of and concerning me and says defamatory things; allege it's a libel masquerading as a fiction. i. Usually not successful. Court very concerned w/ protecting creative writing don't usually want to make the leap from the fiction to it being about a specific person. 3. Remark must be "Defamatory" a. Lowers someone's respect in significant portion of the community. i. Question-begging about meaning of relevant "community." How to define the affected "community"? 4. Falsehood (?) a. Not a requirement at CL. You didn't have to prove falsity, but truth or near-truth was an affirmative defense for D. Burden of proof was on D - in a better position to say why they thought it was the truth. b. Now, virtually impossible to have this tort w/o having falsity as almost an element of the tort. Technically speaking, pleading the truth is an affirmative defense in many jurisdictions. c. When private, public officials or non-public individuals are defamed w/ regard to matters that are of public concern - Hepps decision - Supreme Ct. shifted burden at CL onto the Ps. ii. Romainie v. Kallinger (1988): Book suggesting that a drug counselor had druggie friends not defamatory. 1. Test: Evaluate statement according to fair and natural meaning as interpreted by reasonable person of ordinary intelligence. iii. Matherson v. Marchello (2nd dept. 1984)

b.

Special damages: The loss of something having economic or pecuniary value which must flow directly from the injury to reputation caused by the defamation; not from the emotional effects of defamation. 2. Holding: Defamation which is broadcast by means of radio or TV should be classified as libel (no need to prove special damages). 3. Reasoning: Broader liability b/c vast audiences and greater potential harm. iv. Common Law and Statutory Defenses and Privileges 1. Privileges are defenses - burden is on D to plead privilege and prove facts necessary to establish applicability. 2. Most privileges are "qualified" D who can establish applicability will prevail UNLESS P can show speaker abused the privilege. 3. Fair Comment: Protects literary, artistic and similar kinds of criticism regardless of its merit as long as it is made honestly w/ honesty being measured by accuracy of critics descriptive observations. 4. Fair & Accurate Report: Privilege to publish fair and accurate report of official proceedings; protects media when they report someone else's defamatory statement. a. Medico v. Time (3rd Cir. 1981): Media tried to publish summary of FBI documents that described individual as a member of organized crime family. i. Once libel D establishes existence of "privileged occasion" for the publication of defamatory article, burden returns to P to prove D abused privilege. P could not meet burden - D accurately reported the FBI materials. 5. Retraction Statutes: At CL a D who retracts defamatory statement may offer evidence of retraction in mitigation of damages few states held unconstitutional. a. Consider: promptness, prominence, and forthrightness. b. Most states have retraction statutes. c. Burnett v. National Enquirer (1983): NE not a newspaper so not entitled to benefits of CA retraction statute. 6. Single Publication Rule: Most states have a rule that all publications of the same work are treated as the same work can't sue for each individual copy. CONSTITUTIONAL CATEGORIES (overview) i. Public Officials and Public Figures 1. NY Times v. Sullivan (S.C. 1964) a. Civil rights demonstration in Montgomery, AL. Sullivan a city commissioner. Inaccuracies in ad placed in NY Times. Sullivan brings action. NY Times admits to the minor inaccuracies. i. Note: If you publish someone else's libel, you can be liable for it. b. In AL law at that time, to get punitive damages P had to prove actual malice. i. Malice: Knowledge of the falsity or a reckless disregard for the truth. c. SC adds malice requirement. Ct. says, if we are talking about criticism of public officials in the context of their jobs, this malice requirement is actually an element of the tort itself. i. Unlike all the other elements of the tort, malice standard is not preponderance of the truth, but probably something higher - more like "convincing clarity." (P's burden) 2. "Sullivan" category of cases - criticism of public official in terms of the way he conducts his duty of office. a. "Sullivan"/malice-proving disability - rapidly expands. b. Butts and Walker i. Butts: Prominent football coach. ii. Walker: Former army officer no longer in govt. but kind of a political spokesman. iii. Both were public figures; both said they were libeled. c. EXPANDED Sullivan - Public figures now must prove actual malice. d. How Sullivan disability relates to various damages that might be recovered: 3. Damages: a. Special damages: Must be specifically proven and pleaded by the P; typically associated w/ financial loss. b. General damages: Emotional harm individual hit w/ as a result of the defamation. i. Could be some overlapping w/ these categories depending on how the jurisdiction defines it. ii. Big distinction made b/t the states b/t 2 types of general damages: 1.

ii.

iii.

"Provable" damages: Something that is "provable" in a general sense 1. Ex.: psychological bills is evidence of the damage itself 2. "Presumed" damages: Prior to constitutionalization of 1st Am. by the Ct., most general damages had been presumed. c. Punitive/exemplary damages 4. Sullivan Ps (public officials, public figures) a. Need to prove malice w/ convincing clarity. b. If you are in the Sullivan category, malice is an element of the tort itself. c. Don't get any damages/judgment w/o proving malice. "Private" (non-Sullivan) Ps but Matter of Public Concern 1. Gertz (1974): LIMITS SULLIVAN a. Attorney retained to represent a family of kid killed by Chicago policeman. b. Ct. recognizes that Gertz, as a private person, is diff. from Sullivan, Butts, Walker. c. Gertz P: Non-Sullivan P but a matter of public concern. d. Ct. says, in this category, malice is not an element of the tort. e. But if a Gertz-type P wants the heavier types of damages (general presumed and punitive damages), the Gertz P must prove malice. i. Malice, in the Gertz-type cases, becomes a limitation on damages, rather than an element of the tort. ii. For special and general provable damages, no strict liability - state must at least require negligence. (states are free to set higher standards). 2. State Law Alternatives: NY's more-protective "Chapadeau" test: Requires private Ps to prove that "publisher acted in a grossly irresponsible manner w/o due consideration for standards of info gathering and dissemination ordinarily followed by responsible parties." "Private" Ps and Not a Matter of Public Concern 1. Dun & Bradstreet v. Greenmoss (1985): Ct. found proof of negligence and awarded damages. a. Holding: States may award presumed and punitive damages w/o proof of actual malice to private Ps who are defamed in "speech on matters of purely private concern." But Powell never addresses the question of whether what he said about Gertz not allowing strict liability will apply. 1.

Damages Sullivan (public officials, public figures) Gertz (non-Sullivan P but matter of public concern) Private Ps; Not a matter of public concern Special ($) Malice Negligence Negligence (?) Proven Malice Negligence Negligence (?) Presumed Malice Malice Negligence (?) Punitive Malice Malice Negligence (?) c. DISTINGUISHING "PRIVATE" AND "PUBLIC" Ps i. Who is a "Public Official"? 1. Rosenblatt v. Baer (1966): Baer supervisor of recreation facility owned by county; held public official.

a. Test: (1) strong interest in debate on public issues & (2) a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. 2. Kassel (1989): 3 Prong Test: a. Recognition that discussion of issues of public importance must be uninhibited, robust, and wide open. b. P's access to media to counteract the impact of false and injurious statements. c. The degree to which P has assumed the risk of exposure to criticism by the media. ii. Who is a "Public Figure"? 1. SC and lower cts. have not been able to agree on who is a "public figure." 2. Firestone (SC 1976): Member of 1 of Americas wealthiest families private figure b/c did not assume any role of special prominence in affairs of society and had not thrust herself into forefront of any particular public controversy in order to influence resolution of issues. 3. Wolston (SC 1979): Conviction of a crime does not make you a public figure. 4. Hutchinson (SC 1979): U.S. Senator criticized govt. grants to certain scientists, including P. Ct. held P was private - did not assume role of public importance cannot make someone a public figure by virtue of defamation. 5. General Purpose Public Figures: Well-known celebrity; person whose name is a household word; public recognizes him and follows his words and deeds (ex. Oprah). 6. Limited Purpose Public Figure: Name not normally household word but in a limited area you inserted yourself into the public. a. McLemore (TX SC, 1998): TV reporter covering Branch Davidian raid. i. 3 Part Test: 1. Controversy at issue must be public both in sense that people are discussing it AND people other than immediate participants in controversy are likely to feel the impact of its resolution; 2. P must have more than a trivial or tangential role in controversy; AND 3. Alleged defamation must be germane to P's participation in controversy. 7. Involuntary Public Figures: Very rare a. Children of Julius and Ethel Rosenberg, Johnny Carsons wife b. Note: Ps involved w/organized crime figures may be found to be involuntary public figure Marcone v. Penthouse (1985) 8. Right of Reasonable Rebuttal of Defamatory Remarks w/o Making Oneself Public Figure a. Foretich: Going on TV and acting defensively DOES NOT make you a public figure. d. PROOF OF MALICE AND FALSITY: SUBSTANTIVE AND PROCEDURAL ASPECTS i. The "Actual Malice" Standard 1. No Duty to Investigate (?) a. St. Amant v. Thompson (SC 1968): Generally no duty to investigate. D repeated false charged against P w/o checking charges or investigating source's reputation. Ct. held reckless disregard hadn't been shown. For actual malice there must be sufficient evidence to permit conclusion that D in fact entertained serious doubts as to the truth of his publication. b. Harte-Hanks v. Connaughton (SC 1989): D relied heavily on a source whose credibility had been seriously impugned by other witnesses and whose version of episode was essentially unconfirmed Ct. found actual malice. i. Failure to investigate will not alone support a finding of actual malice BUT purposeful avoidance of the truth is in a different category. c. Masson v. New Yorker (SC 1991): A deliberate alteration of words uttered by P DOES NOT equate w/knowledge of falsity UNLESS the alteration results in a material change in the meaning conveyed by the statement (use of quotes to attribute words not in fact spoken is important to the inquiry but not dispositive in every case). 2. Right to Inquire into Editorial Process a. Actual malice is defined in terms of subjective awareness of falsity, so it invites inquiry into D's journalistic decision processes. Media Ds often resist disclosing these matters. b. Herbert v. Lando (SC 1979): When P is suing for libel and must prove Sullivan malice, he has a right to inquire into the editorial processes. Thought processes and internal editorial discussions are not protected from disclosure by 1st Am.

3. Proof of Malice w/Convincing Clarity: Heightened standard - a higher standard than usual preponderance of evidence. a. Element of the tort in Sullivan category; also a limitation on damages in the Gertz category. b. Trio of cases that strengthened media's hands in mid-1980's: i. Independent appellate review - Bose (SC 1984): Negative review by consumer reporter of electronics system. Trial ct. wrong in finding defamation - consumer reviewer should be able to express opinion about how he hears the sound system. Appellate ct. reverses. 1. Critical point of decision: Appellate cts. exercise de novo review app. ct. is not bound by factfinding below. App. cts. must exercise "independent" review to assure that required proof of malice has been presented w/required clarity protects media Ds on long end if they lose at trial. ii. Summary judgment standard - Anderson v. Liberty Lobby (SC 1986): For public Ps on SJ motion, the judge MUST decide whether evidence in record could support reasonable jury finding either P has shown actual malice by clear and convincing evidence or not can have evidence thrown out based on fact that P cannot show malice. 1. Makes it harder to even reach a jury. iii. Proof of Falsity - Burden of Proof on P - Hepps (1986): Shifts burden of proof as matter of 1st Am. law to P of proving falsity in Gertz & Sullivan cases inconsistent to place BOP on D where needed to prove by clear & convincing clarity, inconsistent to have D BOP to prove truth. 1. Reverses CL presumption that P should not have to prove falsity. e. FALSITY AND OPINION: THE PRESS AS COMMENTATOR i. Milkovich (SC 1990): No wholesale defamation exemption based on opinion. But Ct. does indicate that there are certain things that simply cannot be the basis for defamation actions. 1. Reaffirms 3 Major Propositions: a. Challenged statements MUST be provably false to be protected; i. "In my opinion, John Jones is a child molester" is defamatory b/c implies there are underlying facts known to speaker. ii. "This is worst play I've ever seen" is not defamatory b/c pure opinion - can't prove true or false. b. Context all important protects speech that could not be reasonably interpreted as stating actual facts parody, loose figurative speech or rhetorical hyperbole; c. Court must make independent examination of whole record instead of deferring to jury. ii. State Law: By interpreting state constitutions to be more protective of speech than federal constitution, some cts. give opinion MORE protection than Milkovich requires. State constitutions require more attention to context. 1. What if state constitution uses same language as 1st Am.? High state cts. can use same language as 1st Am. and still give it a broader reading in terms of speech protection. 2. Limitation: Supremacy clause if limitations run smack into guarantees at other end of spectrum. f. REPUBLICATION: THE PRESS AS REPORTER i. Republication Rule: Repetition of defamatory material originating by someone else is a new "publication" and the repeater is a "publisher" liable as if he or she originated the defamatory statement (otherwise media could defame at will merely by finding someone to attribute the original statement to). ii. Publishers and Distributors 1. Zeran v. AOL (4th Cir. 1997): P sues AOL for libel for unreasonably delaying the removal of defamatory messages posted by unidentified 3rd party. a. 230 of Communications Decency Act of 1996: Creates FEDERAL IMMUNITY to any cause of action that would make service providers liable for info originating w/ 3rd party user. 2. Drudge Report case (1998): Statute may even apply when ISP is actively involved in obtaining defamatory material AOL employed Matt Drudge, case dismissed. a. Sims argues AOL shouldn't be protected under 230 if it employs the person who creates the material. Theory for liability: Respondeat superior. iii. Neutral Reportage

1. Edwards v. National Audobon Society (2nd Cir. 1977): NY Times not liable for reporting Audobon Societys defamatory accusations against group of prominent scientists. a. When responsible prominent org. makes serious charges against a public figure, the 1st Am. protects the accurate and disinterested reporting of those charges, regardless of the reporters private views regarding their validity. b. EXCEPTION TO REPUBLICATION rule based on theory that reporting of defamatory allegations relating to an existing public controversy has significant informational value for the public regardless of the truth of the allegations. 2. Neutral reportage principle has never been endorsed by SC and jurisdictions are all over the map. III. PROTECTING PRIVACY a. Privacy is different from defamation. i. Defamation = False ii. Privacy = True; Not of public concern - facts are private, embarrassing, humiliating to P. b. PUBLIC DISCLOSURE OF PRIVATE FACTS i. No cause of action UNLESS the disclosure would be (1) highly offensive to a person of reasonable sensibilities & (2) is of no legitimate public concern. ii. Roberson (1902): NY rejects right of privacy. 1. Mrs. Roberson's face appeared on box of flour. She sues for her right of privacy that has not yet been recognized by CL of NY (today would be a right of publicity violation). 2. NY then passes statute - covers defamation, right of privacy, right of publicity (misappropriation), false light depiction: Only remedy for 4 types of tortuous invasion of privacy permits actions for damages and unauthorized use of person's name or likeness, but only if use is for "advertising purposes, or for the purposes of trade." iii. Haynes (7th Cir. 1993): Book about black migration discusses Ruby Lee Daniels interaction w/ex husband, depicts him as heavy drinker, bad father, etc. 1. Things are true & embarrassing but not about intimate details of relationship but rather misconduct. 2. Publisher wins. Public has legitimate interest in the facts, b/c they need the info to evaluate profound social and political questions the book raises. iv. Sipple (1984): Guy who saved Ford from assassination; paper disclosed his homosexuality not held liable (1) facts were public, not private b/c out in San Francisco & (2) matter of public concern. Newsworthy prompted by legitimate political considerations to dispel notion gays are weak and timid. v. First Amendment Defense: 1. Florida Star v. BJF (1989): Florida Star found civilly liable for violating FL statute for publishing name of rape victim obtained from publicly released police report P. Police had released the report (prob. a mistake). a. Holding: Where a newspaper publishes truthful info which it has lawfully obtained, punishment may be imposed, if at all, only when narrowly tailored to a state interest of the highest order. b. Newspaper wins. Not narrowly tailored. c. Precedent requires matter of public concern but not mentioned here. vi. Enjoining Privacy Invasions 1. Even in case of true defamation, unlikely for courts to grant relief in equity based on relief that damages will be adequate but arguably there is some justification for granting injunctions in privacy cases. c. FALSE LIGHT PRIVACY i. Dissemination of highly offensive, false publicity about someone, w/ knowledge or reckless disregard of the falsity. ii. Hybrid tort b/t privacy invasion as true but embarrassing fact revelation and defamation. iii. Bottom Line: You have falsifications BUT (1) not major falsifications & (2) not ones that injure the reputation. iv. Time Inc v. Hill (1967): Family brings I of P suit for story connecting exaggerated play w/ their real hostage experience, thus placing them in false light. 1. SC treats like classic (Sullivan) defamation (requires actual malice) pre-Gertz. Here falsifications were deliberate, which would invoke the malice standard. 2. Defamation analogy privilege to comment on matters of public interest had constitutional protection. v. Spahn v. Messner (1968): Unauthorized bio of baseball player; writer decides to spice it up and suggest things that arent true falsifications MINOR but DELIBERATE. Not defamation, more like

d.

e.

false light. Ct. decided to treat false light like defamation - actual malice. SC sends it back to reconsider in light of Time Inc. v. Hill. Spahn wins. Malice found b/c D created dialogue, so he knew he was tampering w/ the truth - deliberate falsification. vi. True fictions: Protected - even fictions that trail off name and celebrity. vii. Unauthorized bios: Cant be stopped 1st Am. allows them. viii. Docudramas: Might be considered malice b/c fictionalizations (often partial disclaimers at end). APPROPRIATION OF THE RIGHT OF PUBLICITY i. Refers to the unauthorized use of a person's name or likeness for commercial purposes. 1. Usually provides NO REMEDY when persons name or likeness appropriated for purposes of journalism, entertainment or satire. 2. Includes voice - Midler case (sound-alike). 3. One case suggested it covers persona. a. Samsung v. White: Robot of Vanna in commercial. Her persona held protectable in light of CA statute. 4. Photographs are covered. ii. Zacchni (1977): 1st case to recognize publicity rights; human cannonball; news story promoting circus in town. Where the entire act was shown, the 1st Am. does NOT trump the CL right of publicity. iii. NY --> No CL right of privacy and publicity. Any of these torts must be brought under the NY statute (Stephano). iv. Evaluation by the CA courts in regard to interpreting their own statute. 1. CA right of privacy (p. 404): "for the purpose of advertising or selling, or soliciting purchases." 2. CA courts and 9th circuit impose limitations on this statute. a. Hoffman v. Capital Cities (p. 405) i. Dustin Hoffmans head on another body, in drag, held not to be a misappropriation. ii. Any commercial aspects are inextricably entwined with expressive elements. b. On the other hand, see Downing v. Abercrombie & Fitch (p. 406) i. Photo of surfers used for ad. ii. Court held this did not have the same expressive elements as in Hoffman and so it was misappropriation. v. Perhaps White case should have been found the other way, since the robot is like a parody, which is fair use. 1. HOWEVER, b/c the ad is purely a commercial thing, it cuts the other way. Commercial speech receives less 1st Am. protection. 2. The White case really is an advertisement, despite transformative elements. vi. Self-Promotion 1. Booth v. Curtis Publishing (1962): A publication's use of an earlier story to advertise its own product does not come w/in "advertising purposes" under the NY privacy statute use of photograph incidental to mentioning P in the course of the advertising itself. vii. False or Misleading Promotional Material: 1. Eastwood cases (1983): Claim against Nat'l Enquirer for unauthorized use of likeness on cover and TV ads. a. Different from Spahn b/c Spahn is a serious book, but the Natl Enquirer is a different story. b. Court believes actual malice standard applies. False promotion in a commercial context. Intentional conduct satisfies the actual malice standard. Data Protection Statutes: Rarely act on media directly; affect the media by limiting availability of info on which press may draw. Motivated by public concerns about use of technologies to collect and use personal info.

IV.

LIABILITY FOR EMOTIONAL, ECONOMIC AND PHYSICAL HARM a. EMOTIONAL DISTRESS i. Intentional Infliction 1. Hustler v. Falwell (1988) a. Falwell is parodied in Hustler. b. Not to be taken as defamation b/c no one would believe it was true. c. Falwell loses. Public figures and public officials may not recover for IIED based on a satire. Must show the publication contains a false statement of fact made w/ actual malice. ii. Negligent Infliction 1. Liability for negligent infliction of emotional distress still limited and uncertain.

b.

c.

Decker v. Princeton Packet (1989): In negligence cases emotional harm must be foreseeably severe. ECONOMIC HARM i. Breach of Promise - Can the media be liable for making promises to sources which they then break? 1. Cohen v. Cowles Media (1991): Cause of action based on promissory estoppel; reporters accept terms - say they will keep Cohens identity as mudslinger private, but editor prints source. a. No special exemption for media for commonly applicable laws, such as promissory estoppel. b. Rely on Florida Star - lawfully obtained info is ok. Truthful info, lawfully obtained goes on to high tier analysis. White suggests the info wasnt lawfully obtained here. ii. Negligence 1. General tort rule that one owes no duty to avoid negligently causing purely economic harm protects the media along w/other potential Ds. 2. In the area of financial reporting, it is generally recognized that the parties to whom the media owe a duty has to be narrowly circumscribed. 3. Gutter v. Dow Jones (1986): Error in WSJ causes financial loss to reader who traded in bonds journal not liable to people who claimed to rely on it when trading. As a matter of CL, ct. will say a duty is not owed to the readers - cannot hold the financial reporting journals to this level of reliability b/c the data is so complex. BUT can hold accounting firms liable. Negligence on part of Dow Jones doesn't amount to open-ended liability to the readers. iii. Disparagement 1. Harm is not to reputation of person, but to commercial value of product or other property. 2. Owner of disparaged property has cause of action for pecuniary loss caused by falsehood that D: a. (1) should recognize is likely to harm the value of the property and b. (2) makes with reckless disregard (or knowledge) of its falsity. 3. Oprah got hauled into court in TX about concerns about mad cow disease. Oprah wins - no evidence that Ds knew falsity of statements and evidence only established that sale was delayed, not that product became unmarketable. a. "Veggie libel statutes": Require that product became unmarketable. Vulnerable to constitutional attack. 4. Auvil v. CBS: Segment on dangers of apples sprayed with a carcinogen. CBS not held liable. a. Even if statements false, they are a matter of public concern, and CBS relied on scientific govt. report. Also cannot be proven false (opinion) and therefore protected news is not scientific occupation. 5. Blatty v. Times: Accidental omission of a book from the best sellers list - not liable b/c at best they are negligent - courts are looking for malice. a. Need an affirmative remark to satisfy the "of and concerning plaintiff" requirement not of an concerning P b/c P is not named here at all. PHYSIAL HARM (AND WRONGFUL DEATH) i. Cases don't group well - distinguishable under subcategories: ii. Dangerous and/or Erroneous Instructions 1. Herceg v. Hustler a. Brought on the theory that the instruction itself was dangerous and that people would try it. b. Tendency to lead to violence is not enough. No fair reading of article could make its content advocacy, let alone incitement (Brandenburg). c. Justice Jones' dissent: Porn shouldn't be 1st Am. protected speech. Even Brandenburg recognized that states regulatory interest legitimately extends to protecting lives of citizens from violence induced by speech. 2. Sometimes instructions to relatively safe activities become dangerous due to a negligent error in them. a. Winter v. Putnam Press (9th Cir.) Encyclopedia of mushrooms which identifies safe and poisonous mushrooms mistakenly identifies a poisonous mushroom as safe. Someone dies from eating it, in reliance on book. Court holds no liability, b/c otherwise it would be like strict products liability. A publisher of books has no duty to check out or warn about the quality of work done by outside authors. i. Exception: liability for errors in nautical/aviation maps, b/c theyre treated as products.

2.

iii.

iv.

But in this area, Sims assumes that negligence lawsuits can be brought against the authors of the book. 3. Distinguish this from Exhortation & Incitement: a. Incitement: Brandenburg standard itself. b. Exhortation: there may be liability. i. Weirum: Radio dialogue short of saying break the speed limit, kids crash into 3rd party. Speech there was merely a promotional device to encourage listeners to continue listening to the radio station entitled to limited protection as commercial speech. "Inspiration": Imitation and Mood Shift - no liability. 1. Some inspiration cases smack of imitation. 2. Olivia N. case: Copycat case where someone imitated something they saw in a movie on TV. a. Hard to hold people liable for something that people imitate even though they didnt intend for people to imitate it. b. Distinguished Weirum, where D had actively and repeatedly encouraged listeners no such urging in this case. Would chill speech if liability. Also, Weirum was commercial speech - less 1st Am. Protection. 3. Judas Priest sued b/c people who listened to their music committed suicide. a. Not found liable. Cant go after people b/c their lyrics or tone of the recordings are linked to people committing suicide. b. Movies about gang violence, etc. - these types of cases are brought on a negligence theory - violent people made more violent - but go nowhere. c. Professors and scholars argue that these cases could be handled correctly through adjustments in tort law without falling back on the 1st Amend. 4. Often the pleadings beg the judges to use the 1st Am. 5. There are a number of cases where you would have thought Brandenburg would have come into play, but the judges were "dumb" of it - Sims thinks maybe its b/c they were asked by the lawyers to use it. Facilitation of Criminal and/or Tortious Acts 1. Aiding and Abetting: Criminal Instructions a. Rice v. Paladin (1997): Instructions on how to be a successful hitman; actually teaching a craft, not an exercise in fiction guy commits triple murder. i. Dist. Ct. Doesnt meet Brandenburg, probably not imminent, need to read the book and protect skills. ii. 4th Cir. There should be liability for aiding and abetting criminal activity. While Brandenburg protects "abstract" teaching, it doesn't protect the intentional, detailed direction of murders which amounted to aiding and abetting. This was aiding and abetting. iii. Opens up the possibility that a lot of things will not be Brandenburg protected speech. b. When do these kinds of instruction amount to "aiding and abetting"? i. Whats the obvious difference b/t the traditional way its used and the way its used here? 1. It's not a one on one, not a part of a conspiracy - its a dissemination to the general public. ii. Historically, does Brandenburg have an exception for aiding and abetting? iii. Ct. gets away from Brandenburg by saying, detailed instructions here general incitement. iv. An interesting way to get around Brandenburg, without narrowing the safe harbor that Brandenburg represents, and w/o stretching the words of Brandenburg (like imminent meaning 2 months later when youre talking about assassination of the President). c. This case is not about negligence - especially when you look at the pleadings about how it is designed. 2. Negligence a. Creating a Volatile Situation Jenny Jones (2002): Taping of episode "men who have secret crushes on men" one guy kills the other, decedents survivors sue producers on negligently creating risk of violence. i. Producers had no duty to anticipate criminal act. ii. Not really incitement. b. Endangering Revelations

b.

i. ii.

iii.

iv. v.

vi. vii.

viii. ix. V.

Florida Star case: Not found liable b/c truthful revelation. Note: danger to victim/witness never discussed. Hyde (MO): Similar to Florida Star, but woman was molested by stranger. Criminal report published w/ name/address. Complaints of harassment, same car showing up. Finding of negligent infliction of emotional distress - no invocation of Brandenburg. Times Mirror: Girl sees roommate has been murdered. Name and address released to public. Claims harrassment and emotional distress. Ct. finds in her favor - awards damages for emotional distress. Brandenburg not used. 1. In all these cases, the person lives in fear of physical action against them Brandenburg not discussed in these cases- not advocacy of unlawful action; just release of info. Would not pass Brandenburg standard. Orozco (1998): Newspaper owed no duty to refrain from negligently publishing info that allegedly caused Ps decedent to be murdered. 1. Ct. held 1st Am. Provides no absolute protection from liability for printing names of witness who can identify murder suspect still at large. The individual's safety and the state's interest in conducting a criminal investigation may take precedence over public's right to know name of individual.Criminal Advertisements These cases are interesting b/c there are some exceptions. Braun v. Soldier of Fortune (1993): Advertisement for hitman for hire. 1. Ct. finds liability using risk-utility balancing Is the burden on D in adopting adequate precautions less than the probability of harm from Ds unmodified conduct multiplied by gravity of injury that might result from Ds unmodified conduct? 2. Holding: 1st Am. permits state to impose liability on publisher for negligently publishing commercial ad where ad on its face, and w/o need for investigation, makes it apparent that there is a substantial danger of harm to the public. Eimann v. Soldier of Fortune (1980): Liability overturned on the bases of the ad. Risk of danger not high enough to impose burden upon publisher. Speech offering criminal activity treated as sub-category of commercial speech and may not be under the umbrella.

COPYRIGHT a. OWNERSHIP i. The protection of copyright law extends ONLY to EXPRESSION Ideas ARE NOT protected. 1. Historical facts, arguments about history are not protected. 2. Hoeling: Famous account of Hindenberg disaster; movie based on book that purported theory about Nazi spies. Guy sued saying it was his idea 1st. Idea that Hindenberg brought down is not protected b/c copyright only protects expression. If he had copied paragraphs, that would be infringement, b/c expressions are protected. 3. Great White, Da Vinci Code & Amistad: Similar cases; if based on historical facts its most likely a nonprotected idea. 4. Historical ideas are very hard to protect. But mixtures of historical and fictional ideas are harder. 5. Seems to be related to substantial similarity. Much broader a concept than just copying dialogue or text verbatim. Idea that infringer took total concept and feel. ii. Copyright holder gets exclusive rights to reproduce, adapt, distribute, publicly perform, and publicly display a copyrighted work. iii. Courts have interpreted infringement provisions BROADLY (innocent intent or lack of knowledge may affect damages but DOES NOT affect liability). b. FAIR USE i. Should be treated as general exceptions to copyright protection. ii. Codification - 107 of Copyright Act of 1976: fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research IS NOT an infringement of copyright. iii. Factors: 1. Purpose and character of use (including whether use is of commercial nature or for educational purposes); 2. Nature of the copyrighted work;

iv.

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1ST i. ii. iii.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole; 4. Effect of the use upon potential market for or value of copyrighted work. a. About market substitution/displacement/diversion. Right of First Publication 1. Harper & Row v. Nation Enterprises (Ford Memoirs case) (1985): Harper expected to give Time and its readers first access; Nation magazine publishes after receives manuscript from undisclosed source. a. This was a knowing appropriation of the right of first publication even though percent was small (see factor 3), high ct. not concerned w/ numbers - the appropriation went right to heart and soul of the memoirs. i. Ct. seems to suggest that if we are talking about right to 1st publication, very strong presumption against fair use exception. b. 1st Am. protection not broader than 107 - 107 is as broad if not broader than 1st Am. 2. Salinger Case (2nd Cir. 1987): Salinger could prevent biographer from quoting his unpublished letters even though he had no intention of publishing them himself and had objected to their use primarily b/c he did not want bio to be written at all. a. Author of letters owns copyright even though recipient physically controls it. b. Salinger never had intention to publish, but his heirs might want to publishing them would diminish economic value of future publication. c. He's really using copyright to protect a right of privacy (unprotected under common law). Famous person, matters of public concern. Ironic. d. 2nd Cir.: There is some divergement/displacement here (4th factor). Why would I buy Salinger's letters if I can buy them here? Salinger owns copyright. 3. New Era (2nd Cir. 1989): Unauthorized L. Ron Hubbard bio "Barefaced Messiah"; comes across letter written by Hubbard as a young man in China, unflattering material suggests he was a racist and bad person New Era owns copyright sues for violation of right of publication. a. Ct. denies injunction based on LACHES equity will deny an injunction to someone who sat on their rights for too long go out of their way to say wrong on the merits no right to publish based on Ford. b. No harm to market value never would have published. 4. '92 Amendment Congress doesn't want such a strong presumption against fair use in right of 1st publication. Adds the following to 107 "the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." AM. IMPLICATIONS OF COPYRIGHT ENFORCEMENT - WHY INJUNCTIONS HERE? Courts are usually reluctant to uphold injunctions in 1st Am. cases copyright is one area where the courts are more willing (Sims against). If it isnt a 107 exception FORGET ABOUT IT in the name of the 1st Am. Lemley & Volokh Article 1. No compelling reason to treat copyright differently from other speech restrictions. 2. Exempting restrictions such as copyright law which is largely identified with rich and powerful interests from the "normal" rules of the 1st Am. throws the legitimacy of free speech protection into question. 3. Favoritism for a particular kind of speech restriction risks corroding public respect for 1st Am. law more generally. 4. Publishers and producers very people who often benefit from the way copyright law now ignores 1st Am. protections have the most to lose from any corrosion of 1st Am. protection outside copyright. 3.

VI.

NEWSGATHERING TORTS a. Issues: i. Multiple CL torts - a lot of overlap - might have more than one involved in a single case. Added confusion. A matter of state law. The way states have interpreted tort law differs. ii. "Privacy" - The right of privacy and invasion of privacy adds confusion. 1. Difference in "privacy" in FL Star (where rape victim disclosed) as opposed to a situation like Dietemann (someone enters your home under false pretenses), Shulman, Sanders. 2. Tort of privacy as identified in FL Star - public disclosure/revelation of true but embarrassing private info (facts). a. Defense - newsworthiness; of public concern.

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3. In newsgathering torts cases, this tort would fail b/c these matters are of public concern. Cases we look at today are not only about true but embarrassing fact revelation. Tort often described as intrusion, or intrusion upon privacy. 1. Do these people have a right to privacy? The cases try to parse out this question. iv. State and federal statutes are involved, particularly with things like wiretapping and eavesdropping. 1. Constitutional defenses - 1st and 14th Am. Possibly state constitution defenses as well. v. Damages? 1. Publication itself might not be necessary in the case of some of these torts. 2. But, if publication in effect is the source of the major claim of damages, is it inappropriate for the jury to link the 2? vi. Cases that raised red flags on idea of using tort law violations as a way of newsgathering - possible limitation on constitutional defense: 1. Does tortiously obtained mean the same thing as not lawfully obtained? a. FL Star defense - Truthful info was lawfully obtained. Does lawfully obtained mean not tortiously obtained? b. Business Week Case - documents are probably under a judicial seal that's too broad. A reporter persuades an atty. to send over the materials from the discovery. Atty. claims he didn't know the matters were under seal and reporter had misled him. Judge reacts w/ TRO. Business Week couldnt get courts above to lift TRO. Courts said the way the material was obtained would be relevant. c. Cohen v. Crowles Media - Reporters break promise and reveal source. PR man is fired - sues for breach of K. White in dicta says laws neutrally applied to general public, whether in area of property or tort, will be applied to media, and media does not enjoy special immunities to it. In response to FL Star question, says this is not what we mean by lawfully obtained when we talk about break of K. White suggests when FL Star means lawfully obtained, it might mean not just obtained w/o violating laws, but also w/o committing torts. An added problem. TRESPASS i. A person commits a trespass when he enters property in the possession of another w/o authorization or consent. Once journalists enter private property to ask questions, they gain an implied consent to remain if the property owner agrees to talk. 1. However, journalists may become trespassers if they refuse to leave when asked. May also be trespassers if they misrepresent the purpose of the interview w/ a private person, fail to identify themselves as reporters, or unnecessarily disrupt a business. ii. 1st Am. does not insulate media from trespass liability when they enter to private property to gather info about newsworthy events BUT courts will sometimes adapt tort law to accommodate unique issues presented when reporters trespass to gather news. iii. Fletcher (1976): Girl dies in a fire in her home and fire marshal invites news media, including photographer into the home and photo is published. Photos published in newspaper, from which mother learns of death for 1st time. Mother sues the newspaper for trespass, invasion of privacy, IIED. 1. Holding: News personnel did not illegally enter the residence based on a common custom and practice of the media - for representatives of the news media to enter private property where a disaster of great public interest has occurred. 2. Not widely followed. iv. Le Mistral (1978): CBS directs reporter and camera crew to visit restaurants being cited for health code violations. Jury found CBS guilty of trespass and awarded restaurant compensatory and punitive damages. Even though public accommodation, Ds didn't seek to avail themselves of P's accommodation no intention of purchasing food or drink. Leads us to believe if they had gone in as customers would be ok, but not after Food Lion - not ok today. INTRUSION i. One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if P had an objectively reasonable expectation of privacy and the intrusion would be highly offensive to a reasonable person. ii. Other privacy torts deal with harm caused by publication, intrusion deals with harm caused by conduct. iii. Dietemann v. Time (1971): P, faith-healer - heals w/ herbs in his home (so not literally a business). Newsmen go in pretending to be sent by someone - enter under false pretenses. He brings newsmen into den and prescribes meds for nonexisting problems. They publish it. He sues successfully for intrusion upon privacy - 9th Cir. agrees he had the right to privacy in his den. iii.

d.

e.

Publication was not necessary in this case to make the tort (intrusion) real (even if they hadn't published it they would have been found guilty), but 9th Cir. see the tort and damages subject to enhancement by virtue of the publication. 2. Ties into issue that maybe newsgathering torts are measurable by what you have suffered. 3. Note: Dietemann couldn't have sued for defamation - what was said was true. iv. Gallela v. Onassis (1973): Onassis gets an injunction to keep paparazzi back. Intrusion into her peace of mind in public. Harassment is another tort that grades into broader issue of intrusion upon privacy. 1. Paparazzo claims 1st Am. Court says crimes and torts committed in newsgathering ARE NOT protected. v. Wilson v. Layne (SC 1999): "Ride-alongs." Reporters from Wash. Post invited by police when they conduct a raid (police used valid warrant). Does it violate their 4th Am. right to reas. searches and seizures when media are invited to come along? 1. Holding: Violation of 4th Am. for police to bring members of the media or other 3rd parties into a home during the execution of a warrant when the presence of the 3rd parties in the home was not in aid of the execution of the warrant. 2. But upheld ct. of app. b/c at time search took place, that constitutional right wasn't firmly established. Qualified immunity for law enforcement officers b/c won't apply the law retroactively. NOW they recognize that there is a problem here when the media are brought along by the police - in the future police must be more weary of 4th Am. problem, specifically when bringing media into the home in a ride-along situation. vi. Berger v. Hanlon: Media clearly conspires w/ police. 9th Cir. holds that whatever partial immunity police had in Wilson, wasn't shared by media in this case for trespass and IIED. vii. Shulman v. Group W. Productions (Cal. Sup. Ct. 1998): Zone of privacy beyond the home. Reporters go in rescue helicopter after accident, film extraction from car. Rescue workers are set up by media w/ microphone. 1. Court holds this could be intrusion upon privacy. a. Note: This is not revelation of true but embarrassing info b/c matter of public concern defense eliminates that theory. 2. Action for intrusion has 2 elements: a. Intrusion into private place, conversation or matter, b. In a manner highly offensive to a reasonable person. 3. Ct. says 1st element satisfied. Did she have a reas. expectation of privacy in helicopter? Yes. Entitled to degree of privacy in convos? Yes - conveying private medical info. 2nd element offensiveness - looking not only at what's revealed but also at method by which intrusion is being done. Ct. says could be highly offensive to a reas. person. Don't hold definitively that it is, but say jury could find it was. EAVESDROPPING AND WIRETAPPING i. Deteresa (1997): Flight attendant in OJ case. 1. Confidential communication requires a reasonable expectation that content of communication has been entrusted privately to the listener as opposed to merely a reasonable expectation that the conversation was not being overheard. 2. Holding: State eavesdropping statute doesn't apply b/c Deteresa had no reasonable expectation that a convo with a journalist would be kept confidential - (and P spoke voluntarily w/ reporter). 3. CA part of minority view that need consent of all parties for convo to be taped. Majority view: Eavesdropping allowed w/ consent of 1 party. ii. Sanders (1999): Case investigating telephone psychics. 1. In office or other workplace to which general public DOES NOT have unfettered access: a. Employees MAY enjoy a limited, but legitimate expectation that their conversations and other interactions will not be secretly videotaped by undercover TV reporters, even though these conversations MAY NOT have been completely private from the participants coworkers. iii. Desnick v. ABC (1995): 7th Cir. holds that there was no actionable invasion of privacy when agents of ABC posing as patients, covertly recorded or videotaped doctors convos w/the patients in doctors officers doctors using unnecessary cataract surgery. 1. Posner manages to persuade you that not a single newsgathering tort or statute violation has occurred in this case he says they didnt do anything tortious. USING TORTIOUSLY OBTAINED INFO i. We are going to see media losing on predicate tort a lot of the predicate torts can be sued upon even if the absence of publication. Even when there is no publication tort may be actionable. 1.

f.

g.

The publication itself is privileged under 1st Am. we can assume for the sake of argument that there is nothing in the publication itself that can deprive media of its rights to publish info. 1. Its one thing to commit the predicate tort to get the info; its another to use the info obtained through the commission of the predicate tort. 2. Punishing the predicate tort w/o undermining the publication itself. 3. Tort tainting the publication itself the tort strips the speech of its 1st Am. protection tort undermines the 1st Am. protection of the speech? iii. Pearson v. Dodd (1969): Aides to Senator Dodd secretly removed documents from his files, made copies and delivered to columnists who published them. Dodd sues for invasion of privacy and conversion. 1. Ct. concludes that no liability attached to Ds (reporters) even though they received documents "knowing" they "had been removed" w/o authorization. Reporters weren't the ones who stole so didn't commit the trespass. a. If reporter asks or hires a person to intrude, reporter is then responsible b/c person is an agent for reporter. b. If reporter knows intrusion occurred but didn't direct it, no liability. 2. Where claim is that private info concerning P has been published, question of whether the info is genuinely private or is of public interest should not turn on the manner in which it has been obtained. iv. Bartnicki v. Vopper (2001): Bartnicki is union chief negotiator - calling Kane president of local union over phone, someone intercepted and recorded the call; federal law forbids interception by person not party to conversation and punishes intentional disclosure statute invalid b/c deterred significantly more speech than necessary to protect the privacy interests at stake. 1. General matter state action to punish publication of truthful info seldom can satisfy constitutional standards. 2. Holding: Media cannot be punished for publishing info that others may have obtained illegally, so long as the press played no role in the illegal conduct and the info reported involved a matter of public concern. 3. Court Emphasizes 3 Factors: a. Respondents played no part in illegal interception; b. Access to info on the tapes was obtained lawfully even though info itself was intercepted unlawfully by someone else; c. Subject matter of conversation was a matter of public concern. 4. A strangers illegal conduct does not suffice to remove the 1st Am. shield from speech about a particular matter of public concern. 5. Criminally obtained info that the media knows was criminally obtained gets FL Star protection. FRAUD AND BREACH OF FD i. Food Lion (1999): 1. Higher level of public concern, mishandling of meat; not an intrusion where neither defamation or false light depiction (no malice - Food Lion is a public figure), or truth of embarrassing statements, would lie can we apply Dietemann. 2. Misrepresentation/breach of FD to employers to get job as low level employee to do expose. a. They can say, but for these torts, we never would have hired these people, and therefore the publication damages should be factored in in terms of what we're owed. At trial level, enormous damages - local jury punishing the media for relatively minor newsgathering torts (punished for breach of duty of loyalty but not for publication). INDUCING BREACH OF CONTRACT i. Might media be liable for tortiously inducing a source to violate a confidentiality agreement? ii. This tort should not be enforced when it is against public policy to do so. 1. When tobacco executives have lied to members of Congress - it would be against public policy to suppress the media from revealing this info. iii. The tort should not extend beyond an economic competitive situation. 1. Even if it does apply, media can argue in defense that it's a matter of public interest, so the K should be void against public policy.

ii.

VII.

SUBPOENAS AND SEARCHES a. THE REPORTER'S PRIVILEGE - Should media be required to disclose their sources? i. Sources of Reporter's Privilege: 1. U.S. Const. 1st and 14th Amendments (Branzburg, et. al.) 2. State Constitutions

ii. iii.

iv. v.

vi.

vii. viii. ix. x.

xi.

xii.

3. State Shield Laws 4. Federal "Common Law" (Gonzales) Many states have privilege statute but no federal privilege statute. Consider nature of disclosure sought (confidential or nonconfidential, published or unpublished, personal observation or 2nd-hand account); type of proceeding in which disclosure is sought (grand jury investigation, criminal prosecution, criminal defense, civil litigation, or other); whether the reporter (or his or her employer) is a party to the proceeding in which disclosure is sought. Is there a privilege? Not sure b/c of Branzburg and EEOC. Branzburg v. Hayes (1972): Can journalists be held in contempt for failing to respond to a grand jury investigation? Branzburg involved in 2 cases wrote article about persons changing pot to hash & article where he interviewed drug users and observed them smoke pot. Media proposes qualified privilege. 1. Holding (White - Conservative majority): NO 1st Am. privilege to refuse to reveal confidential sources and info to a grand jury. 2. 4 dissenters and Powell concurrence: The media have SOME qualified privilege. a. Still have to make a case-by-case analysis and do a balancing test: Balance freedom of press vs. obligation of all citizens to give relevant testimony w/ respect to criminal conduct. 3. Majority holding leaves little room for an expansive notion of privilege as to grand jury proceedings. a. Branzburg and companion cases (EEOC, Judith Miller) were about need for federal grand juries to enforce the law w/ media compliance. All 3 cases limited to grand jury matters. 4. Some circuits interpret Branzburg as giving a qualified privilege. UPenn v. EEOC (1990): Unanimous Court rejects universitys claim that 1st Am. principles of academic freedom gave it qualified privilege to resist a subpoena for tenure review materials. 1. Relies on Branzburg, which rejected notion that under 1st Am. reporter could not be required to appear or testify as to info obtained in confidence w/o special showing that testimony was necessary. Many jurisdictions recognize some sort of privilege although varying degrees FL (except as to reporters who are actual eyewitnesses to the crime). Other sources: Some courts find privilege in sources other than 1st Am. state constitutions & shield laws, state common law, "federal common law." State Shield Laws: Branzburg had no effect on state shield laws; many state and fed. cts. read dissenting and concurring opinions as creating federal constitutional privilege. As of 2002 all but 1 fed cir. ct. appeared to recognize some form of qualified privilege. Valerie Plame CIA Leak (Judith Miller case): DC Cir. Even if 1st Am. privilege existed, it was not absolute and had been overcome by special prosecutor's showing of need and no federal common law privilege. 1. Miller sent to jail for not revealing source Branzburg meant what it said. Applying the Privilege: About 1/2 of states' privileges absolute in that once they are determined to be applicable to communication in question they cannot be defeated no matter how great the need for disclosure. The rest of the statutes and the 1st Am. privilege many courts have recognized since Branzburg are qualified even though applicable to disclosure sought by their own terms they may be overcome if certain showings are made. Scope of Privilege (assuming there is one) 1. Gonzales v. NBC (2nd Cir. 1999): Private, civil action. Distinguish from Branzburg and Miller civil case that does not involve grand jury. a. Case seems to classify more as Federal "Common Law" than Branzburg. b. Material here is outtakes - nonconfidential (unlike Judith Miller case). c. Liberal Circuit Qualified privilege applies to nonconfidential as well as confidential info BUT where protection is for nonconfidential info, nature of press interest protected is narrower. i. Standard to overcome that qualified privilege is lower in the case of nonconfidential info and higher in case of confidential info. Here, the P met the burden to compel disclosure. d. For nonconfidential material must show (1) materials are of likely relevance to significant issue in case (2) not reasonably obtainable from other sources. e. Media here loses - forced to turn over info. 2. Some instances where reporter CANNOT avoid testifying when reporter witnesses commission of crime courts may hold privilege inapplicable even when observation occurred pursuant to promise of confidentiality.

b.

Who gets the privilege? Reporters, photographers (and their employers), scholars, and untraditional media sources (Matt Drudge). xiii. Overcoming Qualified Privilege 1. "Materiality and relevance" in the usual evidentiary sense is not enough - there MUST be some specific showing of need to outweigh the sacrifice of 1st Am. values the disclosure entails. 2. If Powell plus 4 liberals means privilege still exists read Miller narrowly that its only about grand juries - like in Branzburg there is a recognition of privilege beyond grand jury this is possible. 3. STRONGEST ARGUMENT: Miller and Branzburg can be limited solely to the facts of grand jury subpoena. 4. Note: In civil cases, the privilege will be extremely hard to overcome. But remember that libel Ps who must prove Sullivan malice have right to enquire into editorial process. xiv. State Shield Laws 1. State Level New legislation usually enacted in response to decisions restricting application of existing shield laws of denying broad protection of 1st Am. 2. Some states have shield laws, some don't. 3. In Re Fitch (NY case) a. Classic state shield law. Only applies when media is 3rd party (non-party subpoena). As to nonconfidential info, NY state shield law protects media more than Gonzales. For confidential info, arguably more protective - an absolute privilege, but can be trumped by demands of U.S. Const., state const. b. State shield laws MUST yield to state and federal requirements for criminal Ds. c. Note: Defamation actions often require disclosure. 4. Versus Other Parties' Constitutional Rights: a. Farber (1978): Clash b/t privilege & fair trial interests. Farber wrote investigative series that led to murder indictments against physician in NJ; protected by absolute state shield law BUT state constitution afforded criminal D right to compel witnesses to attend and compel production of documents for his defense. State constitution prevails over state shield law documents ordered brought in for in camera inspection. i. Party seeking material must show necessity and materiality (sounds like qualified privilege). ii. Read Branzburg as saying there is no federal privilege. xv. Federal Shield Law? 1. Many bills to enact federal shield law have been filed since Branzburg all failed b/c inability of media to agree over terms. SEARCH WARRANTS i. Zurcher v. Stanford Daily (1978): Ct. rejects 4th Am. claim that search warrant could not be directed at 3rd parties and that 1st Am. forbids searches directed at the press. 1st Am. does not prohibit searches of newspaper offices. Risks to press required no greater protection than that provided to all by 4th Am. proscription against unreasonable searches and seizures. ii. Federal and State Statutes: 1. 42 USC 2000aa Enacted in response to Zurcher. Applies to state and federal searches to forbid an official from searching or seizing documentary materials or any work product material possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communication. 2. NOTE: DOES NOT apply where person possessing materials is a suspect in the offense to which materials relate AND contains exception for national security info and child porn.

3.

VIII.

MEDIA ACCESS TO JUDICIAL PROCEEDINGS/PROTECTING THE CRIMINAL D'S RIGHT TO A FAIR TRIAL a. CONTROL OF COURTROOM PROCEEDINGS i. Principal reason for restricting coverage of judicial proceedings is to protect the fairness of the proceeding; other interests include privacy of victims and jurors, integrity of legal system itself when witnesses, jurors, attys. and judge become nat'l celebrities. ii. Sheppard v. Maxwell (1966): Fugitive case, based on Sam Sheppard Murder trial. 1. Holding: D did not receive a fair trial b/c of prejudicial publicity and a carnival-like atmosphere in the courtroom. 2. Possibilities suggested include gag orders (for trial participants), sequestering jury, continuance, change of venue, insulation of witnesses. 3. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside influences.

b.

ACCESS TO COURTROOMS i. Criminal Proceedings: Generally speaking, criminal trials are open to the media. 1. Gannett Co. v. DePasquale (1979): 1st courtroom closure case, suppression of pretrial proceedings to prevent disclosure of very incriminating confession. a. Media challenged this on 1st and 6th Am. Grounds. b. Ct. holds that 6th Am. Right protected criminal Ds, not the media. c. Ct. didn't decide whether 1st Am. Guaranteed media access to the pre-trial proceeding, but held that even if it did, the trial judge could properly determine that the right was outweighed in the circumstances of the case by the D's right to a fair trial. d. Still good law, but to what extent has it been eroded by later case law? 2. Richmond Newspapers v. VA (1980): Right to attend criminal trials generally; 4th trial for murder, Ds atty. requests trial be closed to media and public b/c concerns about enormous amount of prejudicial info that has already tainted jury. P challenges closure. a. There is a presumption of accessibility by the media to criminal trials. b. Burger: Emphasizes historical rationale, historically public had right to attend trials 1st Am. took that into consideration. c. Concurring Justices: Do not like historical basis, rather functional allowance of access to the media and therefore public has access serves functional element assures that criminal D has a fair and accurate adjudication. d. Liberals and conservatives agree that murder trial has strong presumption of openness. 3. Press Enterprises (1986): Pretrial hearing. Whether or not a nurse accused of having killed a number of people in hospital. Voir dire - primacy of the accuseds right is difficult to separate from right of everyone in community to attend voir dire, which promotes fairness. No right of access to media here some possibility that at least in pretrial hearings in criminal cases these will be closed. a. Presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. b. Qualified 1st Am. right of access to criminal proceedings applies to preliminary hearings. ii. Terrorism Cases 1. With SC shifting more conservative Sims thinks decisions will be shifting towards more secretive trials govt. position after 9/11 has stronger interest in closure of prosecutions. 2. Moussaoui case (2003): Case of the only person charged in U.S. courts as an actual participant in 9/11 proceeded entirely in secret for 20 months eventually 4th Cir. ordered govt. to review entire file and make public nonclassified material that could be released w/o prejudice to nat'l security or foreign relations concerns. a. He has been incarcerated so long they probably dont think he has any new info to leak. 3. Jose Padilla: Do we rule on whether or not he is to be subjected to military tribunal despite being US citizen? Argument for mootness P got everything he asked for before they could adjudicate on the matter. 4. RELATED ISSUE: If we are not dealing w/citizens who have full fledged constitutional rights, if the court agrees that these individuals might be subject to less constitutional protection, then it is possible that it flows that the media and the public do not have the same access. iii. Drug Trafficking Prosecutions in Miami 1. The idea that these prosecutions are kept secret is arguably unconstitutional but the fact is it still happens. iv. Civil Trials 1. SC HAS NOT decided whether there is a constitutional right of access to civil trials, but it seems to be assumed that 1st Am. right to attend civil trials is at least as strong as right to attend criminal trials. v. Juvenile Proceedings 1. Delinquency proceedings are often closed by statutory mandate or at discretion of the judge. Original theory was that publicity would interfere w/rehabilitation increasing skepticism about treating juveniles differently. 2. Child custody proceedings traditionally not open. 3. Globe Newspaper Co v. Superior Court (1982): Brennan majority Ct. struck down MA statute that had been interpreted to require that the courtroom be closed during testimony of minor victims of sexual offenses.

c.

d.

e.

Question IS NOT historical openness of a particular type of trial BUT rather state interests assertedly supporting restriction. b. To deny access it must be shown that denial is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest. c. Court thought absolute closure too broad. vi. Immigration Trials 1. Interesting problem related to 9/11 is the media's right to attend immigration trials. 2. Exception to presumption that civil trials should be open. 3. Right of openness has generally been the liberal position. vii. Courtroom Photography and Broadcasting 1. When media seek to photograph or broadcast courtroom proceedings, access question is usually treated quite differently. 2. Today many states allow televising of trials at judges discretion. 3. Chandler v. FL (1981): Burger opinion unanimous court rejected view that televising a criminal trial over the objections of D automatically rendered the trial unfair. a. Ct. upholds convictions of 2 former policemen accused of burglarizing restaurant b/c Ds showed no adverse impact from televising. 4. Today virtually all states permit courtroom photography under some circumstances. 5. Still substantial resistance to cameras, particularly in federal court. 6. Sweeping bans against sketching have been rejected. 7. SC still prohibits television coverage of proceedings but in several cases has allowed audio tapes of arguments to be distributed to media immediately after arguments concluded. ACCESS TO JURORS AND WITNESSES i. Does the media have any right of access to jurors and witnesses? ii. Do jurors and witnesses have a right to speak to the media? iii. The presumption of openness spreads to the idea that jurors will not have their identities protected could be endangering revelation (Mafia trials). iv. Butterworth v. Smith (1990): Reporter subpoenaed to testify before special grand jury investigating corruption in local state's attys' office. Ct. unanimously held reporter called as a witness before grand jury had 1st Am. right to disclose what he knew about a matter under investigation. 1. Decision does not suggest that nonjournalist witnesses have any lesser rights. 2. Reporters 1st Am. right to disclose truthful info lawfully obtained outweighed interests in preventing suspects from learning about grand jury proceedings and in protecting those who might be accused but not indicted. PRIOR RESTRAINTS ON THE MEDIA IN CRIMINAL TRIALS i. Nebraska Press Association v. Stewart (1976): Gag order on media in murder case. 6 members of family killed in small Nebraska town. Issuing gag order against the media if they are lawfully admitted to a hearing becomes a prior restraint (a form of injunction). 1. Injunctions MAY be granted in this setting high tier test need a compelling interest. 2. NOTE: This is conservatives, liberals wanted to say no prior restraints could ever be granted. 3. Use the Dennis gravity of danger test (must determine whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger) case never overruled. 4. Ct. stresses that lower ct. had alternatives to gag order (change of venue, trial postponement, jury instructions, sequester jury, searching questioning of prospective jurors) - no finding that the alternaties wouldn't have protected D's rights. 5. Bottom line: a gag order against the media will only be justified upon a showing of substantial risk of material prejudice by pre-trial publicity, and no viable alternatives. ii. Privileged Communications: The Noriega Tapes 1. CNN gets copies of tapes b/t Noriega and his defense counsel. Judge asks CNN to turn over tapes for in-camera inspection. CNN refuses CNN eventually held in contempt for broadcasting first tape in defiance of restraining order. GAG ORDERS AND RESTRAINTS ON TRIAL PARTICIPANTS i. One of the alternatives to restrictions on publication is to attack prejudicial publicity at its source by prohibiting attys. and other participants in the proceedings from making statements that might prejudice a fair trial most states have rules regulating what attys. may say about pending proceedings ii. Gentile v. State Bar (1991): NV lawyer representing criminal D accused of stealing money and drugs from vault he owned but rented to police Gentile held news conference where he said client was innocent and suggested police detective was likely thief. a.

f.

Rehnquist Majority: State rule unconstitutionally vague; lawyers' speech may be regulated under less demanding standard than that established in Nebraska Press for regulation of press. 2. Only need legitimate govt. interest to regulate atty. speech. iii. Gag Orders on: 1. Media prior restraint - Nebraska. 2. Trial Participants ok recommended in Sheppard. 3. Former Atty. not subject to gag order. ACCESS TO JUDICIAL RECORDS AND DISCOVERY MATERIAL i. Seattle Times v. Rhinehart (1984): Rhinehart and the Aquarian Foundation sued newspapers for libel; newspapers asked for membership and contributor lists during discovery and P refused to provide. 1. Normally presumption against release of names but they are suing us for defamation and we would like names take position that we have right to exercise religion gets access to stuff he normally wouldnt get access to but says not to disseminate protective order valid. 2. Where a protective order is entered on a showing of good cause, is limited to the context of pretrial civil discovery, and does not restrict the dissemination of info if gained from other sources, it DOES NOT offend the 1st Amendment. 3. In this case privacy and religious freedom sufficient to justify protective order and to overcome protections afforded free expression concurrence. 4. What the media wants is too restrictive matter of legislative and judicial grace. ii. Generally w/ regard to right to records there is a 1st Am. and CL claim - recognized a CL right when its views were not particularly open as these things had to be. 1. High court recognizes that there is a right at CL to have access to the tapes it is a qualified right of allowing access to records for people who want it. iii. In Re Providence: Can a judge successfully reverse the 1st Am. presumption of openness? 1. Blanket order judge wants to see all docs before they get released to the public that is ok. iv. Interesting caveat When the media seeks access to docs in general that are arguably part of judicial proceedings the claim will be found on both Const. Law and CL if court feels that CL will decide issue it will not jump and decide 1st Am. typical judicial modesty. 1. In most cases will decide both and will not indicate which will apply to what. v. Judicial records 1. Judicial records are exempted in FOIA. 2. Also an exemption under state statutes. 3. Ironically if you hold that a particular matter is not part of judicial record you may destroy the statutory exceptions on federal law. vi. Federal and state statutes emphasizing disclosure. vii. If the search warrants themselves reveal info about someone we have to think about right of access. viii. Plea agreements generally open. ix. Sentencing reports are more problematic b/c they often include unverified or privacy invading info. x. Grand juries will be closed or sealed. xi. Monica Lewinsky 1. Whitewater special prosecutors investigation of Monica Lewinskys relationship with Pres. Clinton. 2. All hearings related to this matter were basically sealed. 3. Holding ultimately from the DC Cir. very strong presumptions of grand jury and ancillary proceedings can be sealed NO RIGHT OF ACCESS. xii. In theory a very broad read on Rhinehart has generally spread over and favored nonaccess to discovery materials in civil cases making discovery documents nonaccessible in civil litigation. xiii. Videotapes of Depositions 1. Is there a right of access when generally no right of access to depositions themselves? 2. In re Application of CBS: 2nd Cir. - a videotaped deposition is subject to release under CL right of access to judicial records. a. But, in Clinton case, access to 2 videotaped depositions given by Clinton was denied on the ground that they were not judicial records. xiv. Settlements 1. Frequently determinative issue is whether good cause for a protective order is established by assertions that secrecy was an essential condition of the settlement. xv. Freedom of Information Act (FOIA) 9 exemptions of FOIA categories of material that need not be made available to the public: 1. Properly classified nat'l defense and foreign matters; 2. Info related solely to internal agency personnel rules and practices;

1.

xvi.

Disclosures forbidden by other statutes; Trade secrets and certain financial info; Some inter and intra agency memoranda; Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; 7. Many categories of law enforcement records; 8. Records of bank examinations; and 9. Geological info relating to oil and gas wells. The War on Terrorism 1. Protective orders for info relevant to nat'l security exempted. 2. Dist. ct.: Govt. could not withhold names of detainees and attys. 3. Higher ct.: Even the names of detainees and attys. could be suppressed - fell under FOIA. a. Increasing weight of Republican courts is being felt conservatives are generally going to go with govt. on these issues.

3. 4. 5. 6.

IX.

REGULATION OF BROADCAST JOURNALISM a. THE NATURE OF THE BROADCAST SPECTRUM AND THE HISTORY OF FEDERAL LICENSING i. Broadcast means over-the-air broadcast 1st radio broadcast right after WWI. 1. 1920 KDKA from Pittsburgh broadcasts election of Warren Harding 1st commercial broadcast. 2. Fed. govt. quickly begins to regulate when it becomes apparent that regulation necessary for broadcasting system to function need limited licensing to prevent interference if too closely b/t any geographical range they interfere with each other. ii. Radio Act of 1927: 1. Broadcast licenses issued by govt. for limited term; licenses were to be granted and renewed as dictated by "public interest, convenience or necessity." 2. Act forbade censorship of program while it banned obscene, indecent or profane language. iii. Federal Communications Act of 1934: 1. Still the basic framework for over-the-air communications in the U.S. 2. Replaced Radio Act but maintained provisions governing broadcasters centralized federal authority for overseeing common carriers (telephone, telegram operators) and broadcasters in FCC (statute set up the FCC). 3. Covers radio and TV. 4. Common carriers would have to carry things that are even considered obscene. 5. Common carriers regulated by FCC but different from broadcasters. 6. Cable wasnt originally a nat'l phenomenon. 7. Regulate on theory that they have a right to protect over the air TV advertisers to make sure broadcasters not prejudiced (Commerce Clause). b. THE FAIRNESS DOCTRINE AND THE PARADIGM OF "SCARCITY" i. History and Operation of Doctrine 1. Under 1934 Act Congress could regulate over the air broadcast for necessity. 2. Only so many stations could get licenses feeling on part of FCC that it was only fair to give other people greater access to these stations if only some were getting licenses. 3. Before cable only 3 major networks and a few local stations in big metro areas licensees exerting a lot of power. 4. Fairness Doctrine: FCC says licensees MUST cover topics of public interest AND cover them fairly . a. Two Prong Standard: (1) cover controversial topics; (2) cover them fairly. b. PROBLEM: Compelled speech as well as prohibited speech is problematic from 1st Am. Perspective. c. Ex.: If you touch a controversial topic (abortion) you must give it fair coverage. 5. Corollary Rules a. Personal Attack Doctrine: During presentation of views on controversial issue of public importance, if you were attacked personally by anyone whose statements against you are broadcast by a licensee you have a right to reply. b. Political Editorial Rule: If station endorsed one candidate they have to notify the opposing candidate and give him time to come on and respond. ii. Red Lion (1969): Red Lion argues personal attack rule violates their 1st Am. rights by requiring them to present views they don't want to. 1. Ct. under White majority unanimously upholds the rule. Holds the Fairness Doctrine not only doesnt violate 1st Am., but in fact it furthers its goals (Meiklejohn). Ct. suggests that

c.

licensees hold licenses on behalf of the public - 1st Am. rights of listening public is superior to that of licenses of over-the-air broadcasters. 2. THEORY: There is such a limited # of licenses that could be issued those who got licenses didnt have a full 1st Am. right but a privilege. iii. Miami Herald v. Tornillo (1974): Does a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper (for free) violate the guarantee to a free press? Miami Herald challenges the statute on 1st Am. grounds. 1. Ct. holds the statute is unconstitutional - refuses to apply state version of fairness doctrine to newspapers. The statute penalizes newspapers that publish material that might trigger a right of reply. Can't impose the same restrictions on traditional media - traditional media are different from broadcast media, which are licensed and thus have qualified 1st Am. rights. Regulating the content of print media would interfere w/ the editorial process, impose costs and possibly chill speech about politics. iv. Compare Red Lion w/ Miami Herald - in Red Lion, ct. said Fairness Doctrine helps further 1st Am. goals, while in Miami Herald Ct. said it hurt 1st Am. v. Demise of the Fairness Doctrine and What Until Recently Survived: The Personal Attack Rule and the Political Editorial Rule 1. 1980's Deregulation by Republicans We put fairness doctrine and corollary rules in and we can take them out. a. Accepted argument that over-the-air broadcasters were censoring themselves in order not to trigger fairness doctrine. b. Felt it was chilling not facilitating speech b/c stations reluctant to bring on controversial person instead not dealing w/topics at all (so impeded expression or unorthodox or unpopular opinions). c. No longer necessary for viewpoints to be represented b/c of explosive growth in other media (incl. cable). d. Took out fairness first, left corollary rules for about 10 more years. e. Liberals try to make argument that Fairness Doctrine is Constitutionally Compelled Ct. rejects. vi. Justifications for Different Treatment of Broadcast Media Other than Scarcity 1. Public Ownership 2. Intrusiveness broadcasting comes into the home in a way that print media does not 3. Pervasiveness broadcast media has a uniquely pervasive presence 4. Inability to Control Access broadcasters cannot control the reach of their messages 5. Power more people get their news and info from TV than print media 6. Vividness uses more of the senses so its influence is greater 7. Glorification of Violence 8. Impact on children CAMPAIGNS FOR ELECTIVE OFFICE i. Equal Opportunities Statute - 315(a) of 1934 Act: 1. Applies to all public offices. 2. Don't have to cover election at all. 3. If you allow one of the candidates on you must offer equal time to all others. 4. Can't censor what they say no risk of defamation, no liability when complying. 5. Exceptions to rule - 315 not triggered when candidate appears on any of the following: a. Bona fide newscast. b. Bona fide news interview. c. Bona fide news documentary (if appearance of candidate is incidental to the presentation of the subjects covered by the news documentary). d. On-the-spot coverage of bona fide news events (incl., but not limited to, political conventions and activities incidental thereto (news coverage of campaigns)). i. Includes press conferences. e. Note: This gives advantage to incumbents (more likely that news will be focused on incumbents). f. Rule states that exception shall not be construed to relieve broadcasters from obligation to operate in public interest and afford reas. opp. for discussion of conflicting views on issues of public importance. 6. Stations not compelled to take political advertisements. a. 315(b) says stations can't charge candidates more than they would charge any other advertiser. 7. No power of censorship: 315 prohibits stations from censoring candidates, even if their statements are racist, vulgar, or defamatory (apply Brandenburg test).

d.

Zapple doctrine (1970): Friends and supporters of candidates are deemed "candidates" w/in the meaning of 315. Equal time opportunity applies to supporters of candidates, supporters of the others entitled to rebut. a. Governs political advertisements that don't have the voice picture of political candidate, such as a review of the candidate's voting record, or discussion of candidate's position on a particular issue. 9. FCC then said broadcasters could sponsor events, incl. debates, w/o triggering equal opportunity rule. Broadcasters themselves can sponsor debates b/t major candidates and can exclude others w/o incurring 315 obligations. a. Waste of time to have crazy candidates voicing opinion in debate. b. Media given discretion to decide which candidates it wants. c. Ross Perot Case (1996) 3rd party candidate couldnt participate in presidential debate, asked for equal time, told convention, debates, etc. were bona fide news programming, so no 315 obligations. 10. These days, probably only political ads trigger 315. ii. Reasonable Access for Federal Candidates - 312(a)(7) of 1934 Act 1. FCC may revoke a license for willful and repeated failure to give candidates for federal office reasonable access. 2. Applies only to federal candidates. a. Compare w/ Equal Opp., which applies to all candidates. 3. Must be given reasonable access cannot refuse. Once a station gives access to a candidate under 312a, 315 Equal Opportunity obligations are triggered. 4. CBS v. FCC (SC 1981): Efforts by Carter-Mondale committee to buy primetime to begin 1980 campaign. CBS fears such a sale will require it to sell time under 315 to other candidates. ABC fears this will trigger 315 and responds it hasn't yet decided when to begin selling time for the 1980 campaign. NBC responded that it was too early. a. FCC narrowly held the networks were in violation of 312a7. Says campaign has begun. Ct. affirms. b. Burger opinion: The statutory right of access properly balances 1st Am. rights of federal candidates, the public and broadcasters. Reasonable access starts once campaign starts and campaign has started right of listeners emphasized Marketplace of ideas. i. To justify a negative response, broadcasters must show a reas. danger of substantial program disruption or excessive number of equal time requests. iii. Political Ads and Indecency 1. Becker v. FCC (1996): Anti-abortion candidates started using graphic displays of fetuses. Broadcasters unclear whether spots had to be aired under 312 and if so whether they had to be aired at times chosen by candidates under 315. a. Refusing to air anti-abortion commercials in primetime violated the noncensorship provision of 315 b/c it inhibited manner in which he was able to discuss public issues and deprived him of the ability to convey his message as he saw fit by forcing him to change content or accept a time slot that deprived him of his preferred audience. NONCOMMERCIAL BROADCASTING i. League of Women Voters (1984): Congress tried to put restrictions on the programming of public broadcasting stations (which receive public funds). Federal statute prohibiting editorializing by any noncommercial station that receives money from the Corporation for Public Broadcasting - statute held unconstitutional. 1. PBS federally funded statute wanted to prevent them from using their position to back specific candidates or claims being targeted by private groups wanted to avoid political pressures. 2. Liberal Victory liberals free the public broadcast from fetters of federal statute editorial opinion on political matters heart of 1st Amendment. a. But standard not strict scrutiny (b/c over-the-air broadcasters do not have pure 1st Am. rights) liberals have to acknowledge this. Ct. has to implement more intermediate hybrid scrutiny applies O'Brien test of narrowly tailored to further a substantial govt. interest. i. If there's a concern about audience's perception that editorials reflect official view of the govt., this interest can be fully satisfied by less restrictive means that are readily available, like a disclaimer. ii. Arkansas Educ. TV Comm. v. Forbes (SC 1998): Govt.-owned non-public TV broadcaster sponsored a candidate debate and excludes Forbes, an independent candidate with little popular 8.

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support. Did the station have a constitutional obligation to allow every candidate access to the debate? 1. Holding: Broadcasters decision to exclude candidate was a reasonable, view-point neutral exercise of journalistic discretion consistent w/ 1st Am. Station not viewed as public forum - unlike most other public TV programs, the candidate debate was subject to constitutional constraints applicable to non-public forums. OBSCENITY AND INDECENCY ON THE BROADCAST MEDIA i. Distinguishing the 2: Depending on nature of content and reason state seeks to regulate, restrictions on speech relating to sex subject to different constitutional analysis. 1. Obscenity early on given no protection, carve out, criminal sanctions and prior restraints acceptable. 2. Indecent speech of a lower order and receives less (but some) protection. 3. Zones of protected speech is expanding - more speech is indecent, less is obscene. 4. No constitutional definition for indecent speech. a. FCC defines broadcast indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." 5. Roth Obscenity Test (1957): Material is obscene if to the average person applying contemporary community standards, the dominant theme as a whole appeals to prurient interests. a. A lot of disagreement on application Justice Stewart "I know it when I see it." 6. Miller Obscenity Test (1973): Still good law consider whether: a. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interests (suggesting of sexual stimulation) b. The work depicts or describes, in a patently offensive way, sexual conduct specifically defend by the applicable state law and c. The work, taken as a whole, lacks serious literary, artistic, political or scientific value. d. "Contemporary community standards" to be determined by juries on the basis of their own perceptions in the local community, not by reference to nationwide standards. e. "Lacks value" evaluated as nat'l standard - articulated as reas. person standard w/ a nat'l perspective. 7. Regulations that attempt to shield all audiences from indecency usually are unconstitutional unless they can be shown to be necessary to protect children. 8. Attempts to prevent adults from being exposed to nonobscene indecency are difficult to reconcile w/the premise that speech cannot be suppressed b/c of its sexual content, unless it meets the Miller obscenity test. a. Ex.: If Miller test is met, theatres can be enjoined from showing obscene films. ii. Pacifica (1978): George Carlin 7 dirty words case, father driving w/ young son turns on radio hears Carlin monologue about issue of word taboos, writes letter to FCC complaining about stations owned by Pacific airing Carlin in the afternoon file to be used against Pacifica for renewal of license. 1. This does not infringe on 1st Am. rights no right to broadcast this kind of language in the afternoon special impact of broadcast media on children. 2. Holding: Regulation of broadcast indecency is constitutional - broadcasters are not pure 1st Am. speakers. Court recognizes that indecency receives some protection, but regulation here justified b/c of pervasiveness of media in the home and its easy access to children. 3. Liberal dissent argues that many may have thought it was healthy for kids to hear Carlin monologue. 4. Some argue power of the broadcast media alone permits content regulation. iii. Present Day Indecency Regulations of the Broadcast Media 1. Safe Harbors: FCC has a number of late night safe harbor provisions that have been upheld by DC Cir. a. A lot of primetime material has been fined for indecency. b. Safe Harbors channel indecency into late night hours when it could be assumed children do not watch. c. Childrens Television v. FCC (1995): Upholds safe harbors. d. Standards change a lot and what was considered indecent years ago is not today. e. Elements of feminist movement who think porn is hardcore indecent speech that contributes to all kinds of repression of women. 2. Framework for Congressional Attacks on Indecency: a. Regulations justified by need to protect children.

3.

4.

Generally operate by attempting to channel indecent material into "safe harbors" in which the exposure to children is minimized. c. The ease or difficulty w/ which parents can keep material away from kids w/o help of govt. is an important consideration. d. Since adults have a constitutional right to see and hear indecent material and the producers have a constitutional right to supply it to them, the effort to protect children cannot unduly restrict access by adults. Hudnut (7th Cir. 1985) Indiana legislation aimed to punish both obscenity and indecent speech 7th Cir. overturns statute and SC affirms. a. Rejects argument that porn, like obscenity, is low-value speech that can be regulated w/o infringing important 1st Am. Values. b. Sims: There is an argument; a lot of theory behind Hudnut is that a lot of people could be like Christian Bale in American Psycho. c. COUNTERARGUMENT: A bunch of people who would go out and rape strangers sublimate themselves in porn, fantasize about things that they would otherwise go out and do (Dems psychs say no correlation b/t porn and violence against women, Reps say yes). d. Phenomenon of Red Light District basically introducing crime zone w/in city. e. Defied liberal model b/c treated indecency as lower ranked but still under 1st Am. ZONING a. Young v. American Mini-Theatres (1976): Detroit has rules to make theatres showing indecent films to spread out to prevent growth of Red Light District. i. Court allows zoning to take place. O'Brien test implicated. ii. Liberals could have tried to analogize "public forum" regulations. 1. Regulate use of public forums parks, streets public property. 2. Dont have to open them as forums for public speech. 3. If you do, must allow people to do it on a content-neutral basis. b. Conservatives use O'Brien loophole: i. Schnad: Indecent (but not obscene) live performances are forbidden in neighborhoods by broad statute. Exclusion of performances is constitutional b/c it furthers impt. govt. interest. ii. Renton (1986): City picked out areas where it didnt want indecent movie theatres; emphasis was forcing indecent movie houses to stay away from certain zones; houses of worship, schools, etc. 1. Constitutional refining argument theory that inferior 1st Am. is protected but that there are impt. govt. reasons unrelated to the suppression. 1. Not strict scrutiny. OBrien indecent symbolic speech; intermediate scrutiny. This wasnt a pure speech case speech expressed as an action - gets mid-level of protection. 2. Indicates a restriction can be treated as content neutral despite evidence of legislative hostility to content if the predominate purpose is content-neutral. 1. Is it really content-neutral? Prob. not - porno theatres being discriminated against. Questionable use of O'Brien. 2. OBrien has some modern implications far more significant than what court could have imagined.

b.

X.

CABLE TV AND NEW TECHNOLOGIES a. DEVELOPMENT OF CABLE TV AND EARLY REGULATION i. In 1960's cable emerged as significant medium - no specific federal regulation existed. ii. FCC, under authority of 1934 Act, took it upon itself to regulate cable. iii. "Must carry rules" require cable system operators (CSO's) to carry over-the-air broadcasters. b. FRANCHISING CABLE SYSTEMS AND THE PROBLEM OF THE CABLE SYSTEM "WANNABES": ARE THEY 1ST AM. SPEAKERS? i. Who was laying the cable? States and localities. ii. Early cable franchises were monopolies - series of cases brought by the CSO's who were denied a franchise ("wannabees"), against the local regulators, arguing that they are 1st Am. speakers being suppressed. 1. At the same time, CSOs were arguing against must carry rules and saying wannabes should not get franchises.

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d.

Are cable providers 1st Am. speakers? Or utilities - common carriers like phones. Preferred Communications (SC 1986): Brought by wannabes. 1. SC: We are not sure what standard to apply BUT CSO's are 1st Am. speakers of some type v. Lower cts. look to OBrien for intermediate test as appropriate standard and generally conclude monopolies are not ok. One should not have a monopoly franchise based on important govt. reasons unrelated to suppression of speech. 1. O'Brien comes into play when dealing w/ content-neutral regulation - this is content-neutral b/c decision as to what CSO to give franchise to is based on money. vi. Federal statute soon eliminated monopoly. MUST-CARRY RULES ON CABLE SYSTEMS i. Must-Carry: Have to carry over-the-air broadcasters in certain radius of their markets; rules relaxed for a time in the 1980s but reinstated by Congress in 1992. 1. Front End: CBS (2), NBC (4), ABC (7) the over-the-air broadcasters must be front-ended. 2. Small stations formed w/in certain areas w/in designated areas as they MUST be carried to the metro areas if not carried by cable stations they would not reach metro areas. 3. Many stations whose very existence is a result of rule. ii. Counterargument: Supplants room for other stations, 1st Am. violation, compelled to carry speech that is not our own; argue that they are 1st Am. Speakers. iii. Are CSO's 1st Am. speakers so as to be free of must-carry requirements? 1. Public Access and Governmental (PEG) CSO's must carry these for free as a condition of getting the franchise - required by local regulators. iv. Leased Access Channels: Commercial channels that want to be carried, but don't fall under mustcarry rules or PEG (virtually all channels). 1. CSO's required to allocate percentage of space to leased access, on 1st come 1st serve basis, w/ no editorial control if you are leasing out channels for commercial purposes may be forced to lease out to speech you do not like. 2. Purpose is to assure widest possible diversity. 3. All of these regulations arguably infringe 1st Am. speakers rights. 4. Can we treat them as common carriers like telephone companies? NO. v. Turner I (Kennedy, 1994): Ct. concludes must-carry rules are content-neutral b/c the rules on their face impose burdens and confer benefits w/o reference to the content of the speech, and b/c they don't reflect Congress's manifest purpose to regulate speech b/c of the message it conveys. 1. Thus, intermediate scrutiny O'Brien test should be applied in determining constitutionality of must-carry rules. 2. Distinguished from relaxed scrutiny in Red Lion and scarcity rationale (see FCC v. League of Women Voters) b/c cable doesnt have the technological limitations on number of channels that broadcast TV does. vi. Turner II (1997): After DC Cir. says must-carry passes OBrien analysis; upholds must-carry rules. vii. Significance of the OBrien Test 1. May not be an across-the-board rule for cable system regulations. 2. No set rule on outcome; Rule says nothing about how many CSO's can be in area so that must be decided on a case-by-case basis. 3. CSO's w/o us being CSO's and w/o us being required to carry this stuff they would have no feasible way of operating. 4. Conservatives generally did not like this govt. interference in private sector failure of laisezz-faire. 5. Idea of Leased Access: If the over-the-air broadcasters want to get on they should do it by means of leased access. viii. Must-Carry on Direct Broadcast Satellites (DBS) 1. DBS also required to carry certain stations in the interests of diversity of info sources. 2. Time Warner v. FCC (1996): Upholds statute requiring DBS to reserve 4-7% of their channel capacity for noncommercial programming. a. Cite Turner II: Govt.'s interest in assuring the public has access to a multiplicity of informational sources is a governmental purpose of the highest order b/c it promotes values central to 1st Am. ix. Cable System Ownership 1. Rules designed to prevent concentration of ownership in the cable industry have not fared well in court struck down as violations of 1st Am. but courts left open possibility that higher limit might be permissible limit on audience reach. CONTENT REGULATION; INDECENCY ON CABLE i. Courts in 1980's struck down several attempts by states to regulate indecency on cable - efforts predicated on Pacifica. Ct. recognized that viewers have more ability to screen out indecency on

iii. iv.

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cable and that viewers must affirmatively elect to have cable, and concern for children weaker b/c parents can have lock-boxes. ii. DAETC v. FCC (SC 1996): SC held unconstitutional key provision of 1992 Act which required cable operators to segregate indecent programming and block it from all except those who specifically ordered it. 1. Overly restrictive AND not narrowly tailored to restrict childrens access (lockboxes, scrambling laws). 2. Upheld provision that authorized cable operators to refuse to carry indecent programming on channels they leased to others. 3. Strikes down similar provision giving cable operators ability to pick and choose among PEGs Ct. says can't go after indecency on those channels in the same way sophisticated programming, not much indecency. iii. U.S. v. Playboy Entertainment Group (2000): 1. Section 505 of Telecommunications Act of 1996: Congress added to shield children from hearing or seeing images resulting from signal bleed. Required cable TV operators providing channels primarily dedicated to sexually oriented programming either to fully scramble or otherwise fully block those channels or to limit their transmission to hours when children are unlikely to be viewing. 2. B/c fool-proof scrambling expensive in pre-digital era, majority of operators responded by adopting the time channeling approach for 2/3s of day no viewers could receive programming. 3. Kennedy majority: A strict scrutiny problem, NOT O'Brien problem. 505 is unconstitutional b/c CONTENT-BASED RESTRICTION on speech violated 1st Am. could only survive if satisfied strict scrutiny, and govt. could have furthered its interest in less restrictive ways. a. Less Restrictive Option: Section 504, which required cable operators to block any channel upon a subscribers request. So hierarchy of 1st Am. Is: i. Print media - highest. ii. Cable - middle (b/c no limited spectrum but monopolistic). iii. Over-the-air broadcasters - lowest (b/c of limited spectrum).

XI.

COMPUTERS AND THE INTERNET a. REGULATION OF INDECENCY ON THE INTERNET i. The Communications Decency Act of 1996: Criminalizes use of computer program to send to a minor any content that depicts or describes patently offensive (by community standards) sexual or excretory activities. ii. Reno v. ACLU (SC 1997): Ct. holds the Communications Decency Act unconstitutional, rejecting govt.'s argument that protection of minors justified the Act. 1. No surprised audience here don't accidentally find indecent material. a. Distinguished Pacifica, which dealt w/ radio ("surprise broadcast"); access to Internet more difficult than access to radio; no warnings as to content/blocking devices available like w/ Internet. 2. Technology is available for parents to block which is less restrictive. 3. Unprecedented breadth of coverage not only commercial sites. 4. "Indecent" problematic b/c created ambiguities - especially problematic b/c it's a criminal statute - would cause chilling. 5. Conservatives argue you can get around blocking methods. a. Congress tries to narrow act to conform w/ court's concern that statute is so broad it seems to apply to those who were not in business of spreading online porn (i.e. parent who sent info on birth control to his child if the home community found this indecent). iii. Child Online Protection Act (COPA): Statute limits scope to commercial sites; specifically about minors. 1. Affirmative defenses if you restrict access to minors through digital certificates, credit cards, etc. iv. Ashcroft v. ACLU (2004): Ct. held COPA likely to be unconstitutional. The use of filtering and blocking at receiving end effective and less restrictive than a ban directed at purveyors of material harmful to minors. 1. Fact that govt. could not compel use of filters did not prevent that from being effective alternative. v. Ward v. Rock Against Racism: Narrowly tailored does not mean the very least restrictive possible. Slight loosening of strict scrutiny standard.

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Internet Porn in Public Libraries 1. Children's Internet Protection Act of 2000 required public libraries that receive federal subsidies for providing internet access to employ filtering software designed to block access to porn upheld in U.S. v. American Library Association (2003). vii. What's the catch with porn? 1. When conservatives want to put obscenity under a non-Miller test to create a broad umbrella they use the P word and not indecency porn is a broad-net conservative word. 2. Have some cases suggesting govt. can subsidize speech it wants to. a. PICO 1980s libraries wanted to start to pull books off shelves but at that time nobody could force libraries to buy some books and not others do books get tenure? DEFAMATION i. Section 230 ii. Zeran: AOL case made the subject of a practical joke where somebody suggests he is selling t-shirts making light of Timothy McVeigh bombing obviously defamatory. 1. No ISP will be held to be the speaker will not be liable for info originating from independent 3rd party speakers. iii. The Drudge Report: Sims thinks statute is being overread ISP sponsors program and on program defamation occurs - that is problematic. COPYRIGHT INFRINGEMENT i. Religious Tech Center v. Netcom (N.D.Cal.1995): Ehrich is disaffected scientology professor, online bulletin board for criticism of Scientology; suit brought against ISP by copyright holder of Hubbard's works. 1. Summary judgment on direct and vicarious infringement. 2. Contributory had notice about infringement Did they do enough to protect against them? Did they have the ability to screen out what was posted? 3. P org. not entitled to preliminary injunction b/c did not show irreparable harm or a likelihood of success on the merits of the copyright claims. ii. "Safe Harbor" Limitations of Liability Provisions of Title II of the 1998 Digital Millennium Copyright Act 1. Gives ISPs safe harbor from liability for infringement of copyright as long as the ISP can show that: a. It has neither actual knowledge that its system contains infringing material nor an awareness of facts or circumstances from which infringement is apparent or it has expeditiously removed or disabled access to infringing material upon obtaining actual knowledge of infringement; b. It receives no financial benefit directly attributable to infringing activity; and c. It responded expeditiously to remove or disable access to material claimed to be infringing after receiving from copyright holder a notification conforming w/requirements of DMCA. 2. OCILLA (Title II of DMCA): a. Online Copyright Infringement Liability Limitation Act safe harbors provide protection from liability for: i. Transitory digital network communications; ii. System caching; iii. Info residing on systems or networks at the direction of users and; iv. Info-location tools. b. NOTE: The safe harbor limitations of liability ONLY APPLY to a service provider that: i. Has adopted and reasonably implemented and informs subscribers and account holders of the service providers system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service providers system or network who are repeat infringers, and ii. Accommodates and does not interfere with standard technical measures. iii. Possibilities for Copyright Infringement 1. Direct Infringement: Directly liable for making copies. 2. Contributory: Knowledge of infringing activity and that D induced, caused or materially contributed to the infringement. 3. Vicarious: Right and ability to control the infringers act and receives a direct financial benefit. iv. ALS Scan v. Remarq (4th Cir. 2001): P engaged in business of creating and marketing adult photographs on street. D provided Internet access to news groups, did not monitor, regulate or vi.

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censor the content of articles posted in newsgroups by subscribing members it did have the ability to filter info and screen its members. 1. P filed cease and desist letter alleging knowing violations of DMCA. 2. Does an ISP enjoy a safe harbor from copyright infringement liability as provided by Title II of DMCA when it is put on notice of infringement activity on its system by an imperfect notice? a. ISP may not rely on claim of defective notice to maintain immunity defense provided by safe harbor where the notice of fringing activity substantially complied with act. Ellison v. Robertson (9th Cir. 2004): Somewhat noted writer of science fiction short stories; Robertson alleged infringers who posted these on the Internet. 1. DC correctly identified triable issues of fact w/respect to Ellison's claim against AOL for contributory copyright infringement 2. Ellison's claims for direct and vicarious fail insufficient evidence to show direct financial benefit to AOL. 3. Remand for trial on Ellison's claim of contributory copyright infringement and if necessary, on AOL's eligibility to assert safe harbor limitations. Both ALS and Ellison got back to trial on what theory? Trial cts. felt that safe harbor provisions protected ISPs but Cir. cts. not sure